Jason Gill challenged the dismissal of his action seeking a declaration that the executors of the late William Garrett held certain property on trust for him, and in the alternative, sought family provision under s 59 of the Succession Act 2006 (NSW) out of the estate. He also challenged the primary judge’s findings in favour of the executors under a cross-claim filed against the appellant.

Jason and William had met in 1996 and commenced a friendship that developed into one of greater mutual dependence. William loaned money to Jason and covered other expenses. In late 2003, Jason moved into William’s home where he continued to reside until after he died in 2015. William paid for the storage of Jason’s property and continued to loan him money and provide other financial benefits.

Jason looked after William by driving him to appointments, cooking meals and undertaking other household tasks. Contributing to William’s increased medical care needs. Under the Will, Jason was to receive $200,000 less unpaid loans of  $98,000.

Jason claimed that, in 2009, William said he would give him the Paddington property in exchange for living with him as a companion and carer. On that basis, Jason claimed the executors were estopped from denying his claim to the home.

Although William left Jason a significant legacy in his will dated 20 June 2008 (the Will), the residue of his estate, including the Paddington Property, was left to his three children, who are the executors of the Will (the Executors).

The primary hearing

At first instance, the court found that as William lacked capacity by 2009 no such representation occurred; additionally rejecting the family provision claim on the basis that Jason had consciously misused Williams position of special disadvantage.

The executors made a cross-claim, seeking equitable compensation for Jason’s unconscionable conduct in respect of cash withdrawals retained by Jason for his personal use since November 2008 in breach of fiduciary obligations, and for the storage fees incurred by William from the same time.

The Appeal

The NSW Court of Appeal held that:

as there were no direct witnesses, Jason’s credibility was dubious and William had failed to raise the matter with his family and advisors – the primary judge was correct in finding that no representation was made to give rise to a proprietary estoppel.

the medical evidence, coupled with Williams dependence on Jason, supported the primary judge finding that William was in a position of special disadvantage concerning Jason.

Jason had received financial benefits from William, therefore the primary judge was correct in finding no factors warranting his family provision application.

Jason derived a benefit from William making payments for keeping his possessions in storage; refusing to remove his possessions when he had the opportunity after November 2008 was unconscionable. There was no error ordering equitable compensation for storage fees of $43,155.64.

Similarly, as Jason had a fiduciary relationship in respect of the access to Williams bank accounts and PINs, orders for equitable compensation in respect of the unauthorised cash withdrawals made by the primary judge were appropriate. The appeal was dismissed with costs.

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