Public Trustee of the Australian Capital Territory v Jovan Megic [1995] ACTSC 11 (28 February 1995)

SUPREME COURT OF THE ACT

PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY v. JOVAN MEGIC
No. SC524 of 1993
Number of pages - 11
Contract - Real property

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Contract - contract to leave property by will - specific performance - testator to leave property to defendant in return for provision of personal care and improvements to testator's property - equitable mortgage acquired by defendant as security for cost of improvements - defendant made some improvements and provided care - testator purported to end arrangement - term that testator could dispense with care without specific performance - defendant prima facie entitled to enforcement of mortgage as compensation for improvements - adjourned for further submissions.

Contract - construction of contracts - contract to leave property by will - testator to leave property to defendant in return for provision of personal care and improvements to testator's property - contract partly contained in deed and partly in conversations - in the absence of clear evidence of contrary intention there will be a term that testator can dispense with care without specific performance.

Real property - caveat on title - interest claimed as beneficial owner pursuant to contract to leave property by will - specific performance sought.

Elizabeth Schaefer v. Ellen Elizabeth Schuhmann and Others [1955] UKHL 1; (1972) AC 572
State Rail Authority of New South Wales v. Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 at 177

Whittet v. State Bank of NSW (1991) 24 NSWLR 146
Waltons Stores (Interstate) Ltd v. Maher [1988] HCA 7; (1988) 164 CLR 387 at 428-9

HEARING

CANBERRA, 13 and 14 February 1995
28:2:1995

Counsel for the plaintiff: Mr. B. Salmon, QC

Solicitors for the plaintiff: Higgins Solicitors

Counsel for the defendant: Mr. K.J. Crispin, QC

Solicitors for the defendant: Scott Sheils and Glover

ORDER

Orders to be made.

DECISION

MILES CJ This case began as an application made on originating summons by the Public Trustee for the removal of a caveat placed on the title of land at 26 Carstenz Street, Griffith being Block 27 Section 90 Division of Griffith (the property) on 8 February 1993. The caveat claims an interest on behalf of the defendant as "beneficial owner pursuant to a deed dated 27 October 1986" (the deed). The deed was executed by the defendant and the late Cira Nikolic (the testator). On the same day the testator executed a will (the earlier will) which was revoked by a later will.

2. At a directions hearing it emerged that the defendant wished to make a claim against the Public Trustee as executor of the will of the testator. The Court ordered that the defendant file and serve points of claim and that the plaintiff serve points of reply within stipulated times. The court file does not contain any points of claim, but I am told that the defendant served a document of that nature. There are points of reply on the court file but they have little to do with the case I have heard. Senior counsel appeared for both parties and neither placed any weight on either the points of claim or the points of reply. There are no pleadings.

3. It is therefore necessary to say something at the outset about what issues have been fought before the Court. It is common ground, as I understand it, that the fundamental issue is whether the defendant is entitled to specific performance of a covenant in the deed by which the testator promised to devise the property to the defendant, alternatively whether the defendant should be awarded damages for breach of contract for the testator's failure to carry out that promise, alternatively whether the defendant is entitled in the circumstances to succeed in a claim in the nature of quantum meruit.

4. Probate of the later will was granted by this Court on 13 December 1993. This will was executed on 20 November 1987 at Canberra. It bears a certificate by Slobodan Bobo Jovanovic that it was translated into Serbian to the testator prior to execution and that the testator appeared to understand it. It provides a legacy of $30,000 to the Serbian Orthodox Church in Belgrade, now in the Federal Republic of Yugoslavia (Serbia and Montenegro), with certain directions as to the use of the legacy, and it leaves the rest of the estate to the Archbishop for Australia and New Zealand of the Canonical Serbian Orthodox Church for the purposes of the parish of St Sava, Farrer.

5. The testator lived in a house on the property from 1958 until his death on 30 August 1992. The testator held the title on the property by way of lease from the Commonwealth for a period of 99 years commencing 1 July 1964. For several years before his death he was barely able to look after himself and to attend to his personal needs. During those years the house was full of rubbish. It had been damaged in a fire to the extent that ceilings had collapsed. The testator slept on a pile of newspapers. Health authorities were concerned about the state of the premises.

6. The testator and the defendant both attended the Serbian Orthodox Church at Farrer for years before they had anything of relevance to do with each other. The defendant's account of their relationship is as follows. The first occasion on which they spoke was after church one Sunday in 1986 when the defendant, concerned about the testator's appearance and apparent loneliness, asked the testator why he did not look after his clothes. The testator replied that he had no one to look after him, that any friends he had only wanted to take his land and sell it and kick him out. The testator asked the defendant if he would be prepared to look after him. The proposal was discussed further the next day at the defendant's home. The defendant suggested that the testator could make a will, leaving the property to the defendant and that the defendant would look after the testator for the rest of his life. They agreed to see a solicitor.

7. The defendant arranged an appointment with his solicitor, Mr. Baker of Queanbeyan. The defendant went to the testator's home in order to inform him of the arrangement. There is no evidence that the defendant had been to the property previously. They both attended upon Mr. Baker at least twice. Mr. Baker gave evidence which I accept entirely. On the first occasion the defendant in the presence of the testator explained in English what he wanted done. Whether it was on that occasion or the next occasion, Mr. Baker produced the deed and also a will prepared by him in accordance with what he had been told. Mr. Baker explained to the two men the contents and effect of the documents. From time to time at this meeting the defendant spoke to the testator in Serbian and the inescapable conclusion is that he was translating at least some of what Mr. Baker was saying. The further probable conclusion is that the defendant translated everything necessary for the testator to understand the effect of what Mr. Baker was saying. Mr. Baker himself was as satisfied as could reasonably be expected that both the defendant and the testator understood the nature and content of the documents. Both men executed the deed. Although Mr. Baker noted that the testator's appearance was a little unusual, he had no reason to doubt the testator's capacity to execute the documents.

8. The deed provided as follows:

"BY THIS DEED made the 27 day of October, 1986 BETWEEN CIRA
NIKOLIC of 26 Carstenz Street, Griffith in the Australian Capital
Territory, Pensioner of the one part (hereinafter referred to as
"Nikolic") AND JOVAN MEGIC of 6 Jacoby Place, Stirling in the
Australian Capital Territory, Contractor (hereinafter referred to
as "Megic") of the second part WHEREAS Nikolic is the lessee from
the Crown of a Crown Lease and the improvements erected thereon
situate at 26 Carstenz Street, Griffith in the Australian Capital
Territory (hereinafter referred to as "the premises")
A. Megic has agreed to carry out certain repairs and
renovations to the premises and to contribute to the upkeep of
the premises and to provide ongoing care for Nikolic NOW THIS
DEED WITNESSETH as follows:
1. In consideration of the repairs and renovations that
Megic will carry out to the premises Nikolic hereby covenants
that his last will and testament will always provide that he
devise to the said Megic the said premises.
IN WITNESS WHEREOF the parties hereto have set their hands and
affixed their seals the day and year first hereinbefore written.
SIGNED in my presence by the )
said CIRA NIKOLIC ) Sgnd: Cira Nikolic
Sgnd: (Signature) Solicitor
SIGNED in my presence by the )
said JOVAN MEGIC ) Sgnd: Jovan Megic
Sgnd: (Signature) Solicitor"

9. The testator at the same meeting either immediately before or immediately after the execution of the deed, executed a simple will (the earlier will) whereby he revoked all previous wills and testamentary dispositions and appointed the defendant his executor and left the whole of his estate to the defendant.

10. A week or so later Mr. Baker formed the view that the defendant's interests might not be sufficiently protected by the documents so far executed. He spoke to the defendant in order to ascertain how much money the defendant expected to spend in carrying out the repairs and renovations to the property. The defendant gave him a figure of $35,000. Mr. Baker then prepared a mortgage by the testator to the defendant of the testator's interest in the property. A printed form of Memorandum of Mortgage of Crown Lease was used. Several standard clauses were added on which nothing turns. The mortgage acknowledges the receipt by the testator of $35,000 by way of loan to the testator by the defendant. It contains a covenant by the testator to pay that sum to the defendant upon demand. A standard clause relating to interest is struck out with the result that there is no provision for interest at all. The mortgage is dated 20 October 1986, which date Mr. Baker described as a typographical error. The parties executed the mortgage at Mr. Baker's office after explanations and translations as at the previous meeting.

11. In his evidence Mr. Baker remembered sighting the certificate of title which he needed in order to complete the schedule as to the description of the land in the mortgage. He said that he would have required the production of a certificate of title when arranging the will and mortgage and that he was "unlikely to have parted with the original certificate of title and mortgage". At some later stage the mortgage, together with other documents, made its way from Mr. Baker's office to the defendant's present solicitors. Mr. Baker said that the certificate of title possibly remained in his strong room. Neither party sought to have him produce it. The mortgage has never been registered.

12. The defendant says in his affidavit that on the occasion of the execution of the mortgage Mr. Baker said to the testator words to the effect, "If you sign there and if you don t want to give Mr. Megic the house, you must give him the $35,000 and the interest on that money at 21(%". There is, as I have already mentioned, no reference to interest in the mortgage at all. Mr. Baker was not cross-examined so as to suggest that this conversation about interest at 21(% occurred. Nor was the defendant cross-examined to suggest that it did not occur. I conclude that that particular part of the conversation as deposed to by the defendant did not occur.

13. According to the defendant's affidavit, approximately one week after the will of 27 October 1986 was made, the defendant asked the testator if he should come and clean the testator's driveway, but the testator said that he would do it himself. The next Sunday the testator was not at church. When the defendant arrived home he found the testator there. The testator said he had "troubles" with the police over the driveway but that it had now been cleaned up. At the testator's request, the defendant went to the house a day or two later. A health official was present who issued instructions to clean the place up. The defendant, a hospital cook by occupation, spent some days over the next week or so removing rubbish. He also arranged to have the electricity restored and other electrical work done. Over a period of time, probably some months, he arranged for damaged windows and ceilings to be replaced, for plumbing equipment to be installed as well as new doors, cupboards and other kitchen fixtures. Some work was done by the defendant himself.

14. The defendant said in his oral evidence that in order to finance the operation he borrowed $35,000 in one transaction from the Commonwealth Bank at Queanbeyan. He also said that he had repaid that amount to the Bank. No documents were produced to support this claim.

15. The defendant states in his affidavit that during the time he was looking after the testator he "did so very well". He states that he brought meals to the testator (breakfast at 6.00 every morning) and gave the testator meals at his own home. In addition the defendant says that he arranged for meals on wheels at his own expense. He says that he took the testator to the doctor on many occasions and gave the testator a lot of clothing. In his oral evidence he added that he showered the testator. He said that he would have fed and looked after him for the rest of his life if the testator had not stopped him.

16. The defendant's affidavit states that shortly after the events outlined above he arranged for a padlock to be fitted to the testator's front gates then found the gate locked against his entry. The testator then told the defendant that he did not want him to come anymore. Shortly after that again at a church meeting the defendant overheard the testator agree to a suggestion by a priest that he should give all his property to the church.

17. The defendant also said in his affidavit that the priest appointed a committee to see Mr. Baker about the matter. Mr. Baker was not asked any questions about this.

18. On 20 November 1987 the testator executed the later will which has been admitted to probate, and to which reference has already been made. Mr. Baker said nothing about the later will, nor was he asked and I infer that he had nothing to do with it.

19. By 11 November 1987 the testator was obviously concerned as to his position in relation to the property and to the defendant. He consulted the Legal Aid Office and signed a statement for that purpose dated 28 January 1988. The statement is in evidence. Its probative weight is questionable. It is admissible to prove any admission against interest on the part of the testator, but I do not see that it is of much value in that regard. It does indicate concern on the part of the testator about the mortgage, which concern might be taken as an admission that the mortgage is enforceable. The contention in the statement that the testator never received any money in connection with the mortgage is self-serving and inadmissible. To the extent that the testator states that he wishes to leave his property to the Serbian Orthodox Church, it does no more than confirm the contents of the will of 20 November 1987. To the extent that the testator states that he did not understand the documents, it is self-serving and I reject it. The statement is evidence that the defendant carried out some repair or renovation work on the property. However, I reject the statement insofar as it complains of repair work not done or repair work done badly or repair work done which was not required. I further reject the statement as it relates to alleged lack of food supplied by the defendant and to property allegedly missing.

20. Neither the affidavit nor the oral evidence of the defendant is clear when and in what circumstances he stopped work on the house and stopped delivering meals and otherwise looking after the testator. In his oral evidence he said that he saw the testator by chance at a supermarket and told the testator that he should call the defendant whenever he felt he needed help. He said that he overheard a conversation at church between the testator and a priest concerning another will (which is consistent with the testator consulting the Public Trustee in January 1988). The defendant also said in his oral evidence that, after he saw the name of the testator on a menu list at the hospital where he was working, he went to visit the testator in the ward and made arrangements for the testator's comfort whilst in hospital. There is no reason to reject this evidence on these matters but it is not clear when this rapprochement, if it was such, occurred.

21. After the death of the testator on 30 August 1992, the defendant, accompanied by persons from the Serbian Orthodox Church, took the body to Victoria for burial in accordance with the wishes of the testator. At the time of death the property was in a dirty and dilapidated condition, containing a large quantity of rubbish.

22. Apart from the property there are virtually no assets in the estate of the deceased and debts owed by the estate amount to $12,529.61. At the date of death the property had a value of between $175,000 and $190,000.

23. After making due allowance for difficulties of language, culture and personality, I found the defendant not to be an impressive witness. Although there is no need for corroboration as a matter of law, the court should look carefully at a claim brought against a deceased estate. Where the opportunity for corroboration exists but no corroborative evidence is called, the court is entitled to be cautious about the claim. The corroborative evidence as to the repairs and renovations is meagre in the extreme. If the care and attention given to the testator was as claimed, some supporting evidence could have been given and its total absence is unexplained. As already indicated, I reject the defendant's evidence that Mr. Baker told him and the testator that the testator was liable to pay interest of 21(% on the $35,000 provided for in the mortgage if the testator did not wish to leave the property to the defendant. I find that the defendant has exaggerated the amount of work done by him or arranged by him by way of repair and renovation of the property and that he has exaggerated the amount of care fostered by him upon the testator. I find that the care was given over a period of no more than several months. I also find it likely that some of the work done on the house was not authorised by the testator, although exactly what was authorised and what was not is difficult to determine. It is likely that the testator authorised the cleaning up of rubbish, the repair of ceilings and any other damage caused by the fire and anything necessary to meet the requirements of the health authorities but at this stage I am not convinced that it went further.

24. As the claim by the defendant is primarily for a decree of specific performance of the testator's promise, it is important to consider and try to ascertain exactly what the terms of the promise were, and further to consider the whole of the contractual setting in which the terms of the promise were made. First, however, I make some observations about the legal principles to be applied.

25. In general, there is nothing to prevent the exercise of jurisdiction in equity to order that a contract to dispose of property by will be carried out by specific performance. The order is not against the promisor compelling the promisor to execute a will or codicil, but against the estate after death compelling the personal representatives to deal with the property as if the promisor had made the will which had been promised.

26. In Elizabeth Schaefer v. Ellen Elizabeth Schuhmann and Others [1955] UKHL 1; (1972) AC 572, the continuing contract of employment of a housekeeper at a weekly wage was converted into a new contract to serve for no wages until the testator's death, on the understanding that the housekeeper was to become the owner of the house and its contents on the testator's death under his will. In the event, the testator died a few months after the new contract was entered into, the housekeeper having rendered unpaid service to the testator in accordance with her obligations under the new contract. The majority view of the Privy Council at 586, 587 was as follows:

"If the contract is to devise or bequeath specific property the
position of the promisee during the testator's lifetime is
stronger than if the contract is simply to leave a legacy. If the
testator sells the property during his lifetime the promisee can
treat the sale as a repudiation of the contract and recover
damages at law which will be assessed subject to a reduction for
the acceleration of the benefit and also if the benefit of the
contract is personal to the promisee subject to a deduction for
the contingency of his failing to survive the promisor. But if
he can intervene before a purchaser for value without notice
obtains an interest in the property he can obtain a declaration of
his right to have it left to him by will and an injunction to
restrain the testator from disposing of it in breach of contract:
Synge v. Synge (1894) 1 QB 466 .....
If a testator having contracted to leave property by will to A
leaves it to B and there is no need to have recourse to the
property to pay his debts then the executor will be ordered to
convey it to A as the person beneficially entitled to it: see
Synge v. Synge at 470, 471, and In Re Edwards (1958) Ch 168, 175,
176."

27. There are no pleadings in the present case to mark the indicia of the contract on which the defendant relies, but it is clear, in my view, that the contract cannot be confined to the deed of 27 October 1986. The conversations which took place, the will executed the same day and the mortgage executed some week or so later all need to be taken into consideration in order to spell out the relevant understanding between the parties. The deed itself does not purport to contain the whole of the contract and in any event is somewhat ambiguous. In what is more than a recital it records that the defendant has agreed to confer a benefit on the testator in three respects: to carry out repairs and renovations, to contribute to the upkeep of the premises, and to provide ongoing care for the testator. Yet in the operative clause which immediately follows, the consideration from which the promise flows from the testator is stated to be "the repairs and renovations that Megic will carry out to the premises", with no mention of contribution to upkeep and no mention of providing ongoing care. The conversations between the parties and with Mr. Baker make it clear, in my view, that the contract was not simply promise for promise. The testator was not saying simply, "If you promise now to look after me, I promise to leave you the property". What the whole of the circumstances indicate is that the testator was rather saying, "If you look after me, and contribute to the upkeep of the house from now on and continue to do so for the rest of my life, I promise that I will die leaving you the house". In my view, very clear proof would be required of a contract which was claimed to provide that a person promised to dispose of property by will in return for committing himself or herself to the lifetime care of another, without reserving to himself or herself the freedom to dispense with that care at some stage during the lifetime. Contracts of that nature have of course been recognized, often where the promise to dispose of the property by will is in recognition of an existing relationship of care which both parties wish to continue. The relationship need not be of long standing and death might sever the relationship sooner than either party anticipated, as Schaefer v. Schuhmann illustrates. However, no case has been cited like the present where there was virtually no relationship between the parties prior to their entering into the contract.

28. Mr. Crispin submits that, where a person promises to bequeath property in return for lifetime care, the failure of the care giver to honour the contract is appropriately met by a cross claim or set off but does not excuse the failure of the promisor to bequeath the property. Presumably that is the approach which it is suggested should have been adopted in the present case, that the Public Trustee should seek to set off against the value of the property the value of the care (and it would seem the renovations to the premises and the upkeep of the premises) which the defendant did not supply in accordance with his obligations under the contract. However, Mr. Crispin goes further and says that it was the unilateral and unjustified conduct of the testator which prevented the defendant from honouring his side of the bargain which he was always ready, willing and able to do.

29. As I have already indicated, I have considerable reservations about some of the evidence of the defendant. However, I do not find it necessary to come to judgment about whether the conduct of the testator was such as to allow the defendant to regard his obligation under the contract as discharged whilst the obligation of the testator to bequeath the property to him persisted all the while. In my view, the obligation of the defendant to provide care for the testator continued only so long as the testator wanted it. The testator was free to terminate the requirement for care if and when he chose. If he did so the rights of the parties needed to be adjusted and given effect according to the terms of the contract, but not necessarily by specific decree that the title to the property pass to the defendant. Perhaps if the defendant had cared for the testator as agreed and the testator revoked the earlier will on his deathbed, the case for specific performance would be stronger, but that did not happen.

30. I think that this was recognized by the way Mr. Baker approached his task on his instructions and it is reflected by the presumed intention of the parties as evinced by the conversations and documents. The necessary protection of the interests of the defendant should the testator convey the property to someone else before his death was provided by the mortgage, which secured to the defendant repayment (or more precisely payment) of the expected cost to him of the repairs and renovations contemplated. The terms of the mortgage are consistent with the operative clause of the deed. The mortgage secures the payment to the defendant of an amount appropriate to recompense him in return for the defendant's promise to carry out the repairs and renovations (not the upkeep of the premises or the provision of ongoing care). The terms of the mortgage are somewhat misleadingly couched in the language of loan but the intended effect is, I think, that the defendant was entitled to payment of $35,000 for his promise to carry out the unspecified renovations and repairs which the parties had in mind in the event of the property not being bequeathed to him. The effect of the whole of documents and the conversations is that it was mutually agreed that provided that the defendant rendered ongoing care to the testator and paid for the upkeep of the house during the whole of the lifetime of the testator (as well as carrying out the renovations and repairs) then the defendant was entitled to the property upon the death of the testator. However, the condition was not fulfilled. The testator exercised his right to dispense with the care to be provided by the defendant. That left the defendant with his rights under the mortgage, together with a possible claim in quantum meruit for what he did by way of care for the testator and upkeep of the premises.

31. Mr. Salmon, for the Public Trustee, submits that the only satisfactory evidence of anything spent by the defendant in relation to the premises is an amount of $2,300 for reconnection of electricity supply and other electrical work. This is not so, however. There is some evidence of work done in relation to ceilings and there is also an inspection report prepared by Mr. Joseph Mangion, building consultant, dated 21 June 1988. Mr. Mangion estimated the cost of apparent recent repairs and renovations to the property at $10,900 in 1986, at a time when the defendant had finished all the work that he did or arranged to be done. Mr. Mangion expressed the opinion that most of the work that was done was not needed, that the work was badly done and would cost $15,500 to bring it up to an acceptable standard. Mr. Mangion gave evidence before me and was cross-examined. I accept his evidence of the cost of recent repairs and renovations at $10,900. I refrain from forming a view as to the rest of his evidence as it may be relevant at a later stage of proceedings. However, I have formed and do express a view as to the scope of the work carried out by the defendant. In my view, it went beyond the repairs and renovations contemplated by the parties in the contract and included work of a nature which was likely to enhance the capital value of the property which the defendant hoped would be his one day.

32. The agreement between the parties, in my view, clearly contemplated that the defendant would spend $35,000 on repairs and renovations to the property. The testator did not have the freedom to revoke or alter that term of the agreement. I think therefore that prima facie the defendant is entitled to the performance of the covenant in the mortgage to pay the sum of $35,000 upon demand. No demand of this nature has been made, the defendant contending for a more valuable entitlement to the whole of the property. Nevertheless, I think that is the situation, and I need to be persuaded that the effect of the decision of the Court should be other than to award the sum of $35,000 to the defendant by way of judgment against the Public Trustee.

33. With regard to a claim by way of quantum meruit for care rendered to the plaintiff, I would need to be persuaded that the equitable principles of quasi-contract required some award in favour of the defendant. I bear in mind that the sum which the defendant claimed he spent on repairs and renovations, namely $32,000, is less than the amount provided for in the mortgage. I have not yet come to a view whether the defendant's evidence as to the expenditure and the loan should be wholly accepted. I have already expressed the view that some of the repairs and renovations carried out by the defendant were outside the scope of the agreement.

34. Without wishing to express any concluded view on the matter at all, there appears to be a case that the difference between the amount the defendant says he spent on the repairs and renovations and the amount provided for in the mortgage is sufficient to cover any claim in quantum meruit, and might be more than sufficient if I ultimately found that the defendant borrowed or spent less than he claimed. I state my tentative view on these matters as I am anxious that the parties avoid incurring further costs.

35. Mr. Crispin also relied upon the doctrine of promissory estoppel or equitable estoppel. It was not clear whether this estoppel was relied upon in order to found the claim in quantum meruit or whether it was independent of the claim in quantum meruit. However, I think that the same principles apply in either case.

36. Promissory or equitable estoppel is no doubt one of the growth areas in the law but there are limits to its operation. It is not to be regarded as a cure all or catch all claim which assures success to a party who is deserving of merit but who has no claim otherwise at law or in equity. As Kirby P. said in State Rail Authority of New South Wales v. Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 AT 177:

"Too great a willingness by the courts to discern, in pre-contract
negotiations, a basis for estoppel will have the effect of
introducing a serious element of uncertainty into our law of
contract. It may also encourage expensive litigation in which the
terms of the writing are put to one side and the courts busily
engaged .... in a minute examination of the wilderness of
pre-contract conversations."

37. One limit to the growth of the remedy of equitable estoppel is that relief will not be granted in the absence of the formulation of a precise claim (which should appear in the pleadings) and in the absence of clear and convincing evidence of the facts alleged to found the estoppel: Whittet v. State Bank of NSW (1991) 24 NSWLR 146.

38. Furthermore, there are distinct elements of equitable estoppel which the party seeking relief must establish. These were summarised by Brennan J in Waltons Stores (Interstate) Ltd v. Maher [1988] HCA 7; (1988) 164 CLR 387 at 428-9 where he said that the plaintiff must prove that:

"(1) the plaintiff assumed that a particular legal relationship
then existed between the plaintiff and the defendant or expected
that a particular legal relationship would exist between them
and, in the latter case, that the defendant would not be free to
withdraw from the expected legal relationship; (2) the defendant
has induced the plaintiff to adopt that assumption or
expectation; (3) the plaintiff acts or abstains from acting in
reliance on the assumption or expectation; (4) the defendant
knew or intended him to do so; (5) the plaintiff's action or
inaction will occasion detriment if the assumption or
expectation is not fulfilled; and (6) the defendant has failed
to act to avoid that detriment whether by fulfilling the
assumption or expectation or otherwise."

39. It is sufficient to say that in the present case the defendant has not proved that the testator knew or intended the defendant to act on an assumption that merely by carrying out limited repairs and renovations to the testator's house and by rendering a limited amount of care to the testator, which the defendant did in fact render, the defendant would thereby become entitled to the property upon the death of the testator.

40. In the present state of the case, however, it is impossible for me to give a final decision until I have heard further from the parties, and inappropriate to refer the matter to the Master to assess damages. I should also observe that, unless and until the defendant makes a demand for the amount due under the mortgage, he is not entitled to payment and the result might simply be that the title to the property remains encumbered by an unregistered mortgage. If that is so, the Public Trustee will need to get some approval to enable it to carry out its duties of executor. The caveat does not accurately describe the interest of the defendant as caveator, but the defendant as equitable mortgagee does have an interest in the property. The caveat therefore should remain until further order.

41. In the circumstances, I propose to adjourn the matter until a convenient date to enable counsel to address further in the light of these findings and reasons.