Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sion v NSW Trustee & Guardian [2013] NSWCA 337 Hearing dates: 15 August 2013 Decision date: 15 October 2013 Before: Basten JA [1]; Barrett JA [2]; Emmett JA [3] Decision: (1) Dismiss the appeal. (2) Order the appellants to pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - alleged statement by deceased married couple that they would leave their estates to appellants in exchange for care of them and their affairs - whether deceased wife had intention to be bound given alleged promisees were family members - certainty of contract ESTOPPEL - whether alleged representation made - whether reliance - whether detriment Legislation Cited: Conveyancing Act 1919, ss 23C, 54A Limitation Act 1969, s 14 Cases Cited: Bovaird v Frost [2009] NSWSC 337 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Gould v Gould [1970] 1 QB 275 Category: Principal judgment Parties: Ezekiel Haiem Sion (First Appellant) Louisa Joseph (Second Appellant) Hilda Mordecai (Third Appellant) NSW Trustee & Guardian as administrator of the Will of Meda Chamita (Respondent) Representation: Counsel: MS Wilmott SC with MM Pringle (Appellants) LJ Ellison SC with HP Bennett (Respondent) Solicitors: DG Thomas (Appellants) Clinch Long Letherbarrow (Respondent) File Number(s): CA 2012/278715 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 949 Date of Decision: 2012-08-30 00:00:00 Before: Bergin CJ in Eq File Number(s): 2010/247928 Judgment 1BASTEN JA: This appeal should be dismissed with costs for the reasons given by Emmett JA. 2BARRETT JA: I agree with Emmett JA. 3EMMETT JA: This appeal is concerned with claims made by the appellants that their aunt, Mrs Meda Chamita, and her husband, Mr Abraham Chamita, agreed that, in consideration of the appellants taking care of them and of their affairs, Mr and Mrs Chamita would leave their respective estates to the appellants. The appellants also claimed that Mrs Chamita represented to them that, if they cared for and looked after her and her husband, and their affairs, Mrs Chamita would leave her estate to them. 4Mr Chamita died in 2005 and Mrs Chamita died in 2009. Mrs Chamita did not leave any part of her estate to the appellants. The respondent, the NSW Trustee & Guardian (the NSW Trustee), obtained a grant of letters of administration in respect of Mrs Chamita's estate. The appellants commenced proceedings in the Equity Division against the NSW Trustee alleging breach of the alleged agreement and the alleged representation. The Chief Judge in Equity dismissed the appellants' statement of claim and ordered them to pay the costs of the NSW Trustee. The appellants have now appealed from those orders. Mrs Chamita and her family 5Mrs Chamita was born in Calcutta, India, in 1921. She lived her early life in Singapore with her parents and siblings, Mordecai, Sophie and Joseph. Mrs Chamita's mother died when Mrs Chamita was relatively young. On her death, Mrs Chamita's sister, Sophie, raised Mrs Chamita with the assistance of their widowed father. In approximately 1950, Mrs Chamita and her family migrated to Australia. 6Mrs and Mrs Chamita married in 1954. They did not have any children. They lived for the whole of their married life in a house in North Bondi until 1998, when Mrs Chamita moved to Phillip House, an aged care facility in Waverley. Mr Chamita moved to Phillip House in 2001. 7Mrs Chamita's brother Joseph died in 1943, having never married. Mrs Chamita's brother, Mordecai Messiah, married and had two children, Karen Fried (née Messiah) and Edwin Messiah. Mrs Chamita's sister Sophie married Sion Ezekiel in 1938. They had eight children, seven of whom survive. There is some confusion about first names and second names. Sophie's seven surviving children are Louisa Joseph, Katie Grand, Hilda Mordecai, Ezekiel Sion, Ezra Sion, Joseph Ezekiel and Solomon Ezekiel. Ezekiel Sion, Louisa Joseph and Hilda Mordecai, who were the plaintiffs in the Equity Division, are the appellants. The Evidence of the Alleged Contract and Representations 8The conversations that were said to constitute the pleaded contract and the pleaded representation took place in early to mid 1997 at the home of Mr and Mrs Chamita in North Bondi. The persons present during the conversations were Ezekiel Sion and Louisa Joseph, two of the appellants, and Mrs Sophie Sion, wife of Mr Ezekiel Sion. Each of them gave affidavit evidence as to their recollections of the conversations. The primary judge accepted that they gave honest evidence as to their recollections of the conversations. However, her Honour did not necessarily accept the evidence as reliable. 9In his affidavit, Ezekiel Sion said that, in early to mid 1997, Mrs Chamita telephoned him and said: "We want you and your sister Louisa to visit us, we wish to talk to you about our future." He said that his sister, Louisa Joseph, also relayed a similar request to him. He said that, shortly after his telephone conversation with Mrs Chamita, he and his wife, Sophie, together with Louisa Joseph, visited Mr and Mrs Chamita at their home in North Bondi. He said that, after some preliminary conversation, Mr Chamita said: "We want your assistance in managing our affairs. We're getting on and we're not well." Mrs Chamita nodded and said: "Yes, please, we want you to do this." Ezekiel Sion said: "What do you want us to do, do you want us to look after your affairs or organise help?" Mrs Chamita replied: "That's what we want you to do, I'm not well and can't cook much." Louisa Joseph said to Mr and Mrs Chamita: "Who are you going to leave your estates to in your wills?" Mr Chamita said: "To you, to do this." Mrs Chamita nodded and said: "Yes, to you." Mr Chamita said: "There is no one else." 10In her affidavit, Louisa Joseph said that, in early 1997, Mr Chamita telephoned her and they had a conversation as follows: Mr Chamita said: "Louisa, I want you and your brother, Zeke, to come to the house, there is something to discuss." Louisa Joseph said: "Is everything alright?" Mr Chamita replied: "Yes." Louisa Joseph said: "When do you want us to come?" Mr Chamita said: "Come tomorrow." Louisa Joseph said that she went to Mr and Mrs Chamita's house at North Bondi with her brother and his wife. She said that, after they had coffee and tea, Mr Chamita said: "I want you and Zeke to look after us because we are getting old and frail." Mrs Chamita nodded and said: "Yes, we want you to do this." Louisa Joseph said: "What do you really want us to do?" Mrs Chamita said: "We want help." Louisa Joseph said that there was then discussion about the type of help and both she and her brother said: "We can contact the various agencies like 'Meals on Wheels'." Later during the visit, Louisa Joseph said to Mr and Mrs Chamita: "Who are you leaving your estates to?" Mrs Chamita said: "To you." Mr Chamita said: "Yes, to you because you are helping us and looking after us." Mrs Chamita said: "Yes to you, for your help." 11In her affidavit, Mrs Sophie Sion said that sometime in the later 1990s, she accompanied her husband and his sister, Louisa Joseph, on a visit to the home of Mr and Mrs Chamita in North Bondi. Her recollection of the time is that it was in the cooler months of the year and that it was in the afternoon. She said that Mrs Chamita prepared tea and biscuits. After chatting for a while, Ezekiel Sion said to Mrs Chamita: "I understand from Louisa that you wanted to see me." Mrs Chamita said: "Yes." Ezekiel Sion said to Mrs Chamita: "Why do you want to see me and Louisa?" Mrs Chamita said: "We're 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." Mr Chamita said: "Meda used to be able to look after the house very well before, but is now struggling to maintain the house. She's also having difficulty with cooking." During the visit, Ezekiel Sion said to Mr and Mrs Chamita: "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?" Mrs Chamita said: 'That's what I and Abe want from you. I'm 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." Sophie Sion said that Mr Chamita looked very bemused by that suggestion and muttered: "At my age you want me to start to learn how to cook?" Mrs Chamita said: "I keep telling him he should learn to cook." Ezekiel Sion said to Mr and Mrs Chamita: "Do you have any legal documents such as powers of attorney and wills?" Mr and Mrs Chamita said: "No." Ezekiel Sion said to Mr and Mrs Chamita: "I'm concerned about the need for these documents, you must have such documents and they should be put into place. Do you require any help in arranging for these documents to be drawn up?" Mrs Chamita said: "Yes, we do." Mr Chamita said: "Yes, this is what we want." Ezekiel Sion said to Mr and Mrs Chamita: "What are your intentions." Louisa Joseph interjected and said to Mr and Mrs Chamita: "To whom do you wish to leave your estates?" Mrs Chamita replied: "To you, for helping us and looking after us." Mr Chamita said: "Yes, to you, can you help us." Louisa Joseph then said to Mr and Mrs Chamita: "When you say 'to you', I assume you mean all your nieces and nephews equally." Mr and Mrs Chamita replied: "Yes." Mrs Chamita said: "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." Sophie Sion suggested to Mrs Chamita that she should consult a solicitor to prepare her will. Mrs Chamita replied: "Yes, yes I will do that." As they were leaving, Mr and Mrs Chamita said to Ezekiel Sion: "We want you to assist us in arranging a visit to a solicitor to draw up our power of attorney and wills." The Wills 12Mrs Chamita had made a will in September 1966, more than 30 years before the recounted conversations. Letters of administration with that will annexed were granted to the NSW Trustee on 19 November 2010. By that will, Mrs Chamita gave the whole of her property to Mr Chamita, with a proviso that if he predeceased her the whole of the property was to go to their children, with a further proviso that if she died without issue Mrs Chamita's jewellery and personal effects were to be given to Mr Chamita's cousin, Szyfra Aptekarz of New York, with the balance of the estate to be given to Szyfra Aptekarz and all her (Szyfra's) children who survived Mrs Chamita, if more than one in equal shares. Szyfra Aptekarz died in September 1995. She is survived by her husband, Mr Naftali Aptekarz, and four children. 13Mr Chamita made a will at the same time as Mrs Chamita in 1966, in terms similar to hers. However, in January 2001, Mr Chamita made a new will, in which he revoked all former testamentary acts. Probate of that will was granted to Mr Victor Gross and Ezekiel Sion on 26 October 2005. By his new will, Mr Chamita gave the net income from his estate to Mrs Chamita during her lifetime and expressed the wish that the care of Mrs Chamita remain with his nephew by marriage, Ezekiel Sion. After a gift of one per cent of the residue of the estate to the Spastic Centre of New South Wales, the balance of 99 per cent of the residue was given: * as to 77 per cent to the children of Mordecai Messiah and Sophie Sion, other than Ezra Sion and Joseph Ezekiel, in equal shares; * as to 5 per cent to Ezra Sion; * as to 3 per cent to Rebecca, a daughter of Ezra Sion; * as to 3 per cent to Michelle, a daughter of Ezra Sion; and * as to 11 per cent for the benefit of Joseph Ezekiel. 14Thus, in effect, apart from the gift to the Spastic Centre, Mr Chamita left his estate as to one-ninth to each of the nine nieces and nephews of his wife, Mrs Chamita, as follows: Karen Fried (née Messiah), daughter of Mordecai. Edwin Messiah, son of Mordecai. Louisa Joseph (née Ezekiel), daughter of Sophie. Katie Grand (née Ezekiel), daughter of Sophie. Hilda Mordecai (née Ezekiel), daughter of Sophie. Ezekiel Sion, son of Sophie. Ezra Sion, son of Sophie, together with his two daughters. Joseph Ezekiel, son of Sophie. Solomon Ezekiel, son of Sophie. 15The primary judge found that the 1966 wills were made in the terms described above in order to honour an obligation felt by Mr Chamita to his aunt, the mother of Szyfra Aptekarz, who he believed saved his life and protected him from the Nazis during the Second World War. By 2001, Mr Chamita apparently no longer felt an obligation to his aunt's descendants in the United States. That appears to follow from the terms of his new will. 16As appears below, there was a question as to whether Mrs Chamita had the capacity in 1997 to make a contract as alleged by the appellants. However, it was common ground that, by 2001, Mrs Chamita no longer had the capacity to make a will. It is possible that, if Mrs Chamita's attention had been drawn to her 1966 will before she lost the capacity to make a new will, she may have adopted a course similar to that adopted by her husband. That is a matter of speculation. The claims of the appellants 17By their statement of claim, the appellants made the following allegations: * By an agreement made in or about 1997 between the appellants and Mr and Mrs Chamita, it was agreed that, in consideration of the appellants taking care of Mr and Mrs Chamita and their affairs, Mr and Mrs Chamita would leave their estates to the appellants (the agreement). * In pursuance of the agreement, the appellants took care of Mr and Mrs Chamita and of their affairs. * In pursuance of the agreement, Mr Chamita executed a will in favour of the appellants in January 2001. * In February 2002, in further pursuance of the agreement, Ezekiel Sion was appointed manager of the affairs of Mrs Chamita by the Guardianship Tribunal. * In breach of the agreement, Mrs Chamita's will did not make provision for the appellants. * As a consequence of that breach, the appellants have lost the benefit of the agreement and have suffered loss and damage. * In 1997, Mrs Chamita represented to the appellants that she did not have a will and that, if they cared for and looked after her and Mr Chamita and their affairs, then she would leave her estate to the appellants (the representations). * The appellants relied upon the representations made by Mrs Chamita to their detriment. * Mrs Chamita knew that the appellants were so acting and were relying upon the representations. * It is inequitable for Mrs Chamita and the NSW Trustee, as administrator of Mrs Chamita's estate, not to be bound by the representation. 18In its amended defence, the NSW Trustee raised several matters by way of defence, apart from putting the appellants to proof of their claims. The defences may be summarised as follows: * Any alleged contract was void for uncertainty. * The parties to the alleged contract did not intend to enter into legal relations. * Any contract that may have been entered into is unenforceable by the operation of s 23C and s 54A of the Conveyancing Act 1919. * The appellants knew by February 2002 that Mrs Chamita had made a will in September 1966 that, if admitted to probate, would constitute or effect a breach of the alleged contract and that, since Mrs Chamita lacked capacity to make any further will from before that time, the period of six years during which the appellants could maintain a claim for breach of the contract under s 14 of the Limitation Act 1969 expired prior to the commencement of the proceedings. * Mrs Chamita was mentally and physically incapable of giving her consent to, or entering into, the contract alleged and the appellants were aware of that legal and physical incapacity, such that it would be unconscionable for the appellants to rely on the alleged contract. 19In the statement of claim, the appellants sought a declaration that the NSW Trustee held the whole of Mrs Chamita's estate on trust for them and an order that the NSW Trustee distribute the estate to them. At the end of the hearing, the primary judge sought clarification of the relief claimed by the appellants. Counsel for the appellants conceded that, at most, their claim was for three-elevenths of the estate and confirmed that the amount truly in issue was the value of three-elevenths of the estate, by way of damages. Notwithstanding those indications, no application was made to amend the statement of claim or the prayers for relief. 20On no view could the appellants succeed in obtaining the relief claimed in the statement of claim, being a declaration that they were entitled to the whole of Mrs Chamita's estate. Nor would there be any basis for their being entitled to three-elevenths, as opposed to three-ninths or a third. It must be assumed that both the claims made in the statement of claim and the concession before her Honour were on instructions from the appellants. 21The contract pleaded was one involving the three appellants, as well as both Mr and Mrs Chamita. That is to say, it appears to be alleged that there was a joint promise by Mr and Mrs Chamita. Mr Chamita's legal personal representatives have not been joined. However, no complaint has been raised about non-joinder. The conclusions of the primary judge 22The principal questions before the primary judge were whether the evidence was such that her Honour could reach a conclusion as to the terms of the conversations that actually occurred, whether those conversations were capable of constituting an agreement that had sufficient certainty to constitute an enforceable agreement or representation and whether the conversations, objectively considered, should be regarded as being intended to give rise to legally binding obligations, either as contractual promises or as a representation intended to be relied upon. 23The primary judge had real doubt about the accuracy of the conversations as claimed and as to the date of the conversations. Her Honour considered that 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 persons present at the meeting, coupled with serious difficulty in identifying with any certainty the real substance of the alleged agreement, led to the conclusion that there was no intention by Mrs Chamita to enter into a legally binding contract. In the light of the real doubts held by her Honour about the accuracy of the conversations alleged to have taken place in mid 1997, her Honour was also not persuaded that the representations as pleaded were made. Her Honour pointed to the fact that, assuming the words as claimed by Ezekiel Sion and Louisa Joseph were said, the only words spoken by Mrs Chamita were "to you, to do this" and "yes to you", to Ezekiel Sion, and "to you" and "yes to you for your help", to Louisa Joseph. 24Further, the primary judge was not satisfied that Ezekiel Sion had established either reliance on the alleged representations or detriment flowing from any reliance. Her Honour also found that neither Louisa Joseph nor Hilda Mordecai had given any evidence of prejudice by reason of reliance upon the alleged representations. 25One of the two representations alleged in the statement of claim to have been made by Mrs Chamita was that she did not have a will. The primary judge concluded that the appellants had not established that such a representation was made. In the course of the hearing of the appeal, senior counsel for the appellants accepted that that representation could not be made out. That concession is well founded. That leaves for decision only the alleged representation by Mrs Chamita that, if the appellants cared for and looked after her and Mr Chamita and their affairs, then she would leave her estate to the appellants. 26Although it was not necessary for the primary judge to do so, her Honour dealt with the contentions advanced on behalf of the NSW Trustee concerning Mrs Chamita's lack of capacity. Her Honour was satisfied that, because of senile dementia, Mrs Chamita did not have the capacity to form an intention to enter into a legally binding contract with the appellants in mid 1997. That finding would also have a bearing on the question of whether Mrs Chamita had the capacity to understand that the appellants would act to their detriment in reliance upon the alleged representation. The appeal 27The notice of appeal contained some 22 grounds. Several of the grounds have no specific content. The relevant grounds may be summarised as follows: * The primary judge erred in finding that the appellants and Mrs Chamita had not intended to enter into a legally binding contract and in not finding that the presumption that they did not intend their arrangement to be a binding contract had been rebutted. * The primary judge erred in finding that the parties had employed very vague language and that there was serious difficulty in identifying with certainty the real substance of their alleged contract. * The primary judge erred in not finding that Mrs Chamita had represented that she would leave her estate to the appellants if they were to look after her and her affairs and in not finding that Mrs Chamita intended the appellants to act on the representation or that the representation reasonably conveyed to them that she intended them to act on it. * The primary judge erred in finding that the appellants had not relied upon the representations and did not incur detriment in reliance upon the representation. * The primary judge erred, when considering whether Ezekiel Sion had relied upon the representation and incurred detriment, in placing disproportionate emphasis on the fact that Ezekiel Sion was not prevented from taking up other employment, the fact that he had not informed the Guardianship Tribunal of the alleged agreement and the fact that he had made a claim on the NSW Trustee in 2010 for remuneration for looking after Mrs Chamita's affairs. * The primary judge erred in failing to address and consider adequately the evidence as to detriment given by the appellants in their respective affidavits. * The primary judge erred in finding that, because Mrs Chamita was suffering from dementia, it followed that she could not have had the capacity to form an intention to enter into a legally binding contract with the appellants. 28Apart from supporting the conclusions reached by the primary judge, the NSW Trustee also contended that the decision of the primary judge should be affirmed on grounds other than those relied on by her Honour. Thus, it sought to support the decision on the basis of the provisions of the Conveyancing Act and the Limitation Act referred to above, as well as delay in the commencement of the proceedings. Contract 29The primary judge accepted that a court might find that parties to an arrangement intended to enter into a legally binding contract, notwithstanding the informality of the arrangements and the existence of close relationships of a social or familial nature. Her Honour observed, however, that the answer depends upon the assessment of all of the circumstances surrounding the making of the alleged contract. 30The primary judge concluded that there was no clarity or certainty as to what was to occur under the alleged contract. Thus, there was no discussion as to which of the appellants was to provide any particular services or assistance. There was no identification of the nature of the assistance sought by Mr and Mrs Chamita other than, perhaps, a tacit acceptance that the appellants might make contact with some support agencies. There was no discussion of the manner in which the appellants would provide assistance or for how long. There was no discussion of what was to happen should either Mr or Mrs Chamita become ill or need to enter an aged care facility. 31The primary judge also referred to Sophie Sion's evidence that Mrs Chamita said that she and Mr Chamita needed some help and that, when Ezekiel Sion sought to clarify what it was that Mr and Mrs Chamita wanted, by asking whether they meant that they wanted the appellants to manage their affairs and organise home help for them, Mrs Chamita responded by saying that that is what she and Mr Chamita wanted. 32The appellants contended that the conclusion of the primary judge was artificial, in holding that there was no clarity or certainty as to what was to occur in respect of the implementation of the alleged contract, because there was no discussion about the matters listed by her Honour. The appellants contended that, where one party agrees to look after or care for another, it is impossible to know exactly what it is that the party who has agreed to carry out such services will be called upon to do. They say that Mr and Mrs Chamita expected that they would need assistance with their shopping and financial matters, to be taken to medical appointments and to have household activities provided. The appellants say that, as ordinary people, Mr and Mrs Chamita would be expected to understand what would be required. 33The appellants contend that it would be "absurd" to treat the arrangement as vague, simply because there was no discussion or contemplation of what exactly was to happen should either Mr or Mrs Chamita become ill or need to enter an aged care facility. They say that her Honour's observation that there was no discussion as to which of the appellants would provide any particular services or assistance was also "absurd", because that would depend on the exigencies of the moment . 34Ezekiel Sion gave evidence that Louisa Joseph asked Mr and Mrs Chamita to whom they were going to leave their estates in their wills. Louisa Joseph said that she asked Mr and Mrs Chamita about to whom they were leaving their estates, with no mention of wills. Sophie Sion, on the other hand, said that her husband, Ezekiel Sion, raised the question of the intentions of Mr and Mrs Chamita and that Louisa Joseph then asked them to whom they wished to leave their estates. 35Only Sophie Sion said that Louisa Joseph clarified the matter relating to the intentions of Mr and Mrs Chamita, by saying that she assumed that they meant to leave their estates to all of the nieces and nephews of Mrs Chamita equally. Neither Ezekiel Sion nor Louise Joseph suggested in their evidence that Louisa Joseph had used such words. They did, however, give some evidence, apparently without objection, as to what they subjectively understood by the words. Of course, their subjective understanding could have no bearing at all on whether or not the words used were sufficiently clear to constitute a binding contract. 36Such inconsistencies would not necessarily preclude a finding as to what was said. However, they highlight the uncertainty as to what was said. Such lack of certainty casts doubt on the intentions of the participants in the discussions to undertake obligations that could be enforced in a court of law. 37The question of an intention to create legal relations is not to be resolved by examining the subjective minds of the parties. It is not their actual subjective intention that is relevant. Rather, it is the intention that a court imputes to them. That is to be determined by examining what the parties said and did in the circumstances in which they found themselves. The question is then whether reasonable people would regard the arrangements made in those circumstances as intended to be binding on the parties (Gould v Gould [1970] 1 QB 275 at 279). 38The search for an intention to create contractual relations requires an objective assessment of the state of affairs between the parties, and not the identification of any uncommunicated subjective intention that either party may have had. The circumstances that might properly be taken into account in deciding whether the relevant intention was present are very varied. It is not possible to form prescriptive rules as to that matter. The intention is that which would objectively be conveyed by what was said or done, having regard to the circumstances in which the statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties (Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25]). 39The appellants contend that the question of whether the terms of an arrangement are clear enough to constitute an enforceable contract, on the one hand, and the question of whether the parties to such an arrangement intended to enter into legally binding relations, on the other, are quite discrete. However, while they are separate questions, they are also related. Thus, the more informal the circumstances in which the arrangement is made and the vaguer the terms in which the arrangement is expressed, the more likely it will be that an observer would conclude that the parties did not intend to enter into legally binding relations. 40As a matter of human experience, when family members make a promise to each other it is unlikely that they intend it to be legally binding. As a result, the law presumes that, as a matter of fact, family members do not intend to contract when they make arrangements amongst themselves (the presumption). The presumption applies with diminishing force the more remote the familial connection (Bovaird v Frost [2009] NSWSC 337 at [53]). 41The vaguer the language of an arrangement and the greater its informality, the more difficult it will be to rebut the presumption, as it will be more likely that there was no intention to contract. The appellants accept the existence of the presumption but contend that it is rebutted, as the alleged contract was one of seriousness to both Mr and Mrs Chamita, as well as to the appellants, despite it being expressed in simple terms. The appellants also contend that the presumption does not arise or is weakened by the fact that they were nieces and nephews and were not in any event affectionately close to Mrs Chamita. 42Mr and Mrs Chamita had no children of their own. There was evidence, however, that, at one stage, Hilda Mordecai, one of the appellants, had lived with Mr and Mrs Chamita for some time after she first arrived in Sydney in mid 1961. Hilda Mordecai claimed that, in 1962, Mrs Chamita suggested to her that, if she would agree to Mrs Chamita's suggestion that she be adopted by Mr and Mrs Chamita adoption, they would leave their estates to her. She said that she developed a mother and daughter relationship with Mrs Chamita but that the relationship soured after she rejected Mrs Chamita's offer of adoption. For some time after she moved out of the North Bondi house in 1962 she had difficulty visiting Mr and Mrs Chamita because of Mrs Chamita's coldness towards her. 43However, the friendship was restored in 1967, when Mrs Chamita telephoned her and asked her to visit her at the North Bondi house. From that time, they visited each other and had outings together. Hilda Mordecai located cleaners for Mr and Mrs Chamita and responded to telephone calls for assistance. The close relationship apparently continued until mid 1997, when Mr and Mrs Chamita asked her to find a live-in carer to do cleaning and housework. However, she was unable to find anyone suitable. 44Hilda Mordecai gave evidence that, later in 1997, Mr and Mrs Chamita told her that they had approached her brother Ezekiel Sion for assistance to help them with their affairs. She said that, in 1997, her brother told her that Mr and Mrs Chamita had said that they were " going to leave their estate to us but we have to continue to help them". She said that her brother told her that he was looking after the affairs of Mr and Mrs Chamita but that he would need "yours and the family's help". Hilda Mordecai said that she responded by saying "of course". 45While the appellants were not Mrs Chamita's children, it is clear that Mrs Chamita regarded her nieces and nephews as family. As a result, the fact that the appellants were Mrs Chamita's nieces and nephews, rather than her children, does not necessarily assist in rebutting the presumption and may indicate that the presumption arises. There was no evidence of a particularly close or affectionate relationship between Mr and Mrs Chamita, on the one hand, Mrs Chamita's nephews and nieces, on the other. There was no evidence of any cultural obligation that would have impelled Mrs Chamita's nieces and nephews to provide for her and her husband, although, as will appear below, Ezekiel Sion asserted to the Guardianship Tribunal that he was assisting his aunt as her eldest nephew. 46In the present case, the objective circumstances are more relevant to the determination of whether the parties intended to enter into a contractual relationship. Even if the presumption arises, it is of diminished force given the nature of the relationships involved. However, one of those objective circumstances is the familial relationship involved. 47The statement of claim alleges that Mr and Mrs Chamita agreed to leave their estates to the three appellants. That is consistent with neither the language deposed to by Ezekiel Sion and Louisa Joseph nor the language deposed to by Sophie Sion. Ezekiel Sion and Louis Joseph deposed to language that indicated that only the two of them would be the beneficiaries of Mrs Chamita's estate. Both said that Mr Chamita and Mrs Chamita simply said "you". That could only refer to those present. On the other hand, Sophie Sion deposed to language that would make the nieces and nephews beneficiaries. Neither version is consistent with the allegation in the statement of claim that the three appellants were to be the beneficiaries. 48The concession made at the end of the hearing before the primary judge, that the appellants' claim was for three-elevenths of the estate rather than its entirety, was not consistent with any of the evidence. There were eleven potential beneficiaries under Mr Chamita's 2001 will. However, two of those beneficiaries are not nieces or nephews but the children of one of Mrs Chamita's nephews. There was no evidence to suggest that Mrs Chamita or Mr Chamita treated the children of nieces and nephews on an equal basis with nieces and nephews. As indicated above, Mr Chamita divided his residue into nine parts, not eleven parts. 49I am not persuaded that there was any error on the part of the primary judge in concluding that no legally binding contractual obligation was entered into in 1997 between Mrs Chamita, on the one hand, and the appellants, or any of them, on the other hand. The evidence before her Honour would not rebut the presumption that such an arrangement between close relatives was not, considered objectively, intended to give rise to legally enforceable and binding contractual obligations. 50That conclusion is supported by the uncertainty of the language used during the conversations that are alleged to have given rise to the contract. The inconsistency in relation to the claims for relief also supports the conclusion reached by the primary judge that there was insufficient certainty as to what was promised or represented by Mrs Chamita or jointly promised by Mr and Mrs Chamita. Representation 51The NSW Trustee accepts that the degree of certainty required for an actionable representation is not as high as that required for a contractual promise. Nevertheless, there must be sufficient certainty for both representor and representee to know what is to occur in the future. The observations made above concerning the vagueness and lack of certainty of the promise alleged to have been made by Mrs Chamita apply equally to the representation alleged to have been made by her. 52Clearly, the primary judge was not persuaded that Mrs Chamita said, in sufficiently unequivocal terms, that she would leave her estate to her nine nieces and nephews, being the offspring of her brother and sister, Mordecai and Sophie, respectively. The uncertainty and inconsistency in the relief claimed by the appellants confirm the uncertainty of the representation alleged to have been made by Mrs Chamita. There was no error on the part of her Honour in concluding that no representation was made with sufficient clarity to give rise to an estoppel that required any part of Mrs Chamita's estate to be held for the benefit of any of the appellants. In the light of that conclusion, it is not strictly necessary to deal with the question of detriment. However, it is desirable to say something about the findings made by the primary judge. 53In the statement of claim, the appellants alleged that, in order to take care of Mr and Mrs Chamita and their affairs: * Ezekiel Sion did not pursue other employment after he ceased employment in the Commonwealth public service; and * each of the appellants devoted a more than reasonable amount of time to taking care of Mr and Mrs Chamita and their affairs, thereby prejudicing their personal and professional life. The primary judge concluded that none of the appellants acted to his or her detriment in reliance upon the alleged representation. 54The primary judge concluded that the matters to which Ezekiel Sion attended on behalf of Mr and Mrs Chamita would not have prevented him from taking up other employment, as alleged in the statement of claim. He was made redundant by his employer in 1998 at the age of 55 years. He claimed that, in order to provide the higher level of assistance necessary for Mr and Mrs Chamita, he was unable to engage in full-time employment to provide for his wife and family and their future. He also claimed that he felt that his financial future was taken care of by reason of the expected bequest from Mr and Mrs Chamita. He said that he therefore felt able to assist them with the level of assistance they required, unfettered by any financial concerns. 55Ezekiel Sion said that, between 1974 and 1997, he hardly ever or rarely visited Mr and Mrs Chamita at their home in North Bondi. Telephone calls may have occurred rarely from approximately 1987. He said, however, that, from 1997, he concentrated on improving the quality of life of Mr and Mrs Chamita and that he attended to their needs. He prepared a schedule of the matters in respect of which he said he gave them assistance (the Assistance Schedule). Her Honour observed that the Assistance Schedule did not specify the time that particular activities might have taken and in most instances did not specify how often a particular activity occurred, despite some exceptions. 56Ezekiel Sion said that, prior to his redundancy, he had decided that he would commence a professional recruitment consultancy and that he would have been able to capitalise on his experience with the Commonwealth Employment Service, where he had been the manager of its professional employment service for about 14 years. He claimed that, because of the wishes of Mr and Mrs Chamita, he did not pursue his private sector option but spent from 1997 to 2009 looking after their affairs. 57The primary judge found that, once Mr and Mrs Chamita were living in Phillip House, the tasks undertaken by Ezekiel Sion were limited to visiting them, attending to some of their needs from time to time, including shopping, attending to the books of account and dealing with the rentals from a property they owned and, later, their North Bondi home, paying bills and liaising with the staff at Phillip House. Her Honour accepted that there were some weeks in which Ezekiel Sion had to spend more time looking after the affairs of Mr and Mrs Chamita, such as when they moved out of their North Bondi home and into Phillip House. That was a significant task, involving moving furniture and cleaning the property so that it could be rented. Her Honour referred to evidence given by Ezekiel Sion in cross-examination that, after July 1998, when Mrs Chamita was admitted to Phillip House, he was spending the same time as previously. 58In rejecting the assertion that Ezekiel Sion acted to his detriment in reliance upon the alleged representation, her Honour had regard to two particular matters involving his conduct that her Honour considered were inconsistent with reliance upon the alleged representation. The first concerned an application made by him to the Guardianship Tribunal to be appointed as manager of Mrs Chamita's affairs. The second concerned a claim made to the NSW Trustee for payment for services he claimed to have rendered to Mrs Chamita as such manager. 59In December 2001, Ezekiel Sion applied to the Guardianship Tribunal to be appointed as the manager of Mrs Chamita's financial affairs. The Tribunal made orders appointing him as financial manager on 8 January 2002. In its reasons for that decision, the Tribunal said that Ezekiel Sion had informed it that, because of his financial background and his position as the eldest nephew, he had been assisting Mr and Mrs Chamita over the past few years with management of their finances. The Tribunal referred to an investment property owned by Mrs Chamita, which had an estimated value of about $1,400,000, and the North Bondi home owned by Mr Chamita, and noted that their income and expenditure had always been pooled. The Tribunal recorded that Ezekiel Sion had said that there was no plan to sell the investment property or the North Bondi house, 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 the ongoing needs of Mr and Mrs Chamita. Ezekiel Sion pointed out to the Tribunal that Mr Chamita's will named him as joint executor and stated that it was Mr Chamita's wish that the care of Mrs Chamita remain with him. The primary judge attached significance to the failure by Ezekiel Sion to make any mention to the Guardianship Tribunal of the contract alleged to have been made in 1997. 60The primary judge accepted that Ezekiel Sion attended to the matters that he described in the Assistance Schedule. However, her Honour was not persuaded that they were so burdensome or time-consuming that he was unable to pursue other activities. Her Honour emphasised that he had told the Guardianship Tribunal that he was managing a substantial estate of his cousin at the time when he made the application to become Mrs Chamita's financial manager. Her Honour observed that it was clear that he was not impeded from that management task by the time that he was devoting to the affairs of Mr and Mrs Chamita. 61The second matter to which her Honour referred was a claim made by Ezekiel Sion to the NSW Trustee in April 2010, in which he certified to the NSW Trustee that the sum of $503,830.95 was due to him from Mrs Chamita's estate and that no portion of the amount had been paid to him since her death. The claim was for administration of the estate from 1998 to 2009, consisting of 9,984 hours at $50 per hour and from May 2009 to March 2010, consisting of 74 hours at $50 per hour. He also claimed $930.95 for out of pocket expenses. The NSW Trustee disputed both claims and invited Ezekiel Sion to take proceedings to enforce or prosecute the claims. It appears that he did not do so. 62The primary judge considered that the claim lodged with the NSW Trustee in April 2010, and the failure by Ezekiel Sion to inform the Guardianship Tribunal of either the alleged contract or the representation upon which he said he relied in doing the work, were relevant and significant for the purposes of determining whether, as a matter of fact, he relied to his detriment on the alleged representation. Her Honour was satisfied that, had Ezekiel Sion relied upon the alleged representation, he would have raised the alleged contract and representation at both of those times. Her Honour therefore concluded that Ezekiel Sion had not established that he suffered any detriment in reliance upon the alleged representation. 63Ezekiel Sion's claim for reimbursement amounted to 832 hours per year or 16 hours per week. The Assistance Schedule is very specific as to the things undertaken by him. In the circumstances, it may be that Ezekiel Sion expended substantial effort and time. However, the critical question in the present case is whether he did so in reliance on the alleged representation. 64It may not necessarily be inconsistent with reliance on any representation made by Mrs Chamita that the claim made to the NSW Trustee did not refer to a contract. The real difficulty for the appellants is that the alleged representation was not made to Ezekiel Sion personally. The work that he in fact did cannot readily be traced to the terms of the alleged representation. If the representation were to provide a benefit to the group of nephews and nieces, he alone would not have been entitled to that benefit, even if he alone did the work. His claim for reimbursement appears to be inconsistent with what he claims the representation to have been. One difference between contract and representation is that the specificity of the undertaking may be less important in equity, as opposed to the provision of services and their acceptance, as a matter of fact. Nevertheless, I do not consider that the primary judge erred in concluding that Ezekiel Sion did not suffer any detriment in reliance upon the alleged representation. 65The appellants' claim in their notice of appeal that the primary judge erred in failing to address adequately or at all the evidence given by Louise Joseph and Hilda Mordecai in their respective affidavits. 66In her first affidavit, Louisa Joseph said that, after the visit in which the alleged representation was made, she saw Mr and Mrs Chamita regularly. She said that she would telephone them and, if Mrs Chamita were unwell, she would go and visit them. Sometimes, she would cook for them and take items on those visits. She also said in her affidavit that, about two months after the alleged representation was made, Mr Chamita telephoned her and said that he wanted to see her and Ezekiel Sion. She and Ezekiel Sion went to Mr and Mrs Chamita's home, where they chatted. She also referred to a telephone call she received from Mr Chamita in late 1997 saying that Mrs Chamita had broken her arm. She said that, following that telephone call, she visited Mrs Chamita in the Prince of Wales Hospital. In her affidavit, she asserted that, when Mrs Chamita returned home, she gave her extra help and also took her for her hospital appointments. She said that she continued to give Mr and Mrs Chamita assistance at their home when they needed it, although the affidavit is quite unspecific as to the extent or nature of the assistance. She also said that, after Mrs Chamita went into Phillip House, she continued to visit her and looked after her while she was there, going each evening after work to check on her. Once again, nothing more specific than that is asserted. 67In her second affidavit, Louisa Joseph said that, on weekends, she would usually visit Mr and Mrs Chamita during the day. She gave further evidence about the occasion when Mrs Chamita broke her arm in 1997, when she visited her in hospital. After she returned, she arranged a cleaner for Mr and Mrs Chamita and from time to time made rice and vegetables and chicken or fish for them. She also took them cake from time to time. 68The primary judge referred to Louisa Joseph's evidence that she was a secretary at the Prince of Wales Hospital at the time when she gave her evidence. Her Honour said that there was no evidence of her previous occupations and no evidence of her professional career having been adversely affected or prejudiced by any of the assistance that she gave to Mr and Mrs Chamita. There was no evidence that her personal life was adversely affected by the amount of time she spent with Mr or Mrs Chamita. 69In her affidavit, Hilda Mordecai said that, in 1997, she was working at John Fairfax Publications as a sales advisor and that her hours of work and days of work were flexible. Accordingly, she was able to help Mr and Mrs Chamita when necessary, which she said was most of the time. She said that she would see them practically every day, as they were not far from her. She said in her affidavit that, in 1998, Mr Chamita told her that he could not take care of Mrs Chamita and that she could no longer cook. Hilda Mordecai said that, after Mrs Chamita was admitted to Phillip House, she was able to visit her and see to her needs, which she did by tidying her up, brushing her hair, dressing her, feeding her and accompanying her to the hospital when she fell and broke her ribs and leg in Phillip House. She said that she also used to take Mr Chamita from the North Bondi home and drive him to see Mrs Chamita at Phillip House. She said that she would receive telephone calls from Phillip House, as a result of which she would go and do things for Mrs Chamita, such as take her to hospital, accompany her back to Phillip House or buy her things such as clothing or fruit. She also said that she and her husband and other members of her family spent considerable time in tidying up the North Bondi home in preparation for leasing, after Mr Chamita was admitted to Phillip House. She said that they had to arrange for cleaners, lawn mowing and frequent calls to Phillip House. She claims that that took a toll on her life and that she and her family had to defer visiting her son in America. Nothing more specific about the "toll' was said in the affidavit. 70The primary judge was also satisfied from Hilda Mordecai's evidence that she was willing to assist both Mr and Mrs Chamita, irrespective of any representation that might have been made by Mrs Chamita. Her Honour found that Hilda Mordecai assisted them because she thought it was appropriate for a relative to do so. Her Honour said that there was no evidence from which she could conclude that Hilda Mordecai's personal or professional life was prejudiced as claimed. Her Honour had the impression from the evidence that Hilda Mordecai enjoyed her relationship with Mrs Chamita and did not see it as prejudicing her life at all. Her Honour concluded that Hilda Mordecai was motivated to assist Mr and Mrs Chamita by a genuine feeling of closeness to them, and not in reliance upon a contractual promise or a representation about the disposition of Mrs Chamita's estate. 71None of the things done by either of the two nieces would be out of the ordinary for reasonably caring relatives. There was no evidence that they would not have done the things deposed to but for the alleged representations. It is clear that the primary judge had regard to all of the evidence. There was no error in her Honour's conclusion that neither Hilda Mordecai nor Louisa Joseph acted to their detriment in reliance upon any alleged representation made by Mrs Chamita. Other Grounds of Appeal 72In the light of the conclusions stated above, it is not necessary to deal with the other grounds of appeal. In particular, it is not necessary to consider the findings made by the primary judge as to the mental capacity of Mrs Chamita, either to enter into legally binding contractual obligations or to make a representation in circumstances where she understood that any of the appellants might rely on the representation in acting to their detriment. A fortiori, it is not necessary to deal with the matters raised by the NSW Trustee in its notice of contention. Conclusion 73It follows from the above that the appeal should be dismissed. The appellants should pay the costs of the NSW Trustee. ********** 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: 15 October 2013