Alderuccio v Alderuccio
[2019] VSC 404
•20 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2018 02028
| ANTONIO ALDERUCCIO (a person under a disability by his Litigation Guardians RAFFAELLA EVANGELISTA and Carmela Guarino) | Plaintiff |
| v | |
| FRANK ALDERUCCIO | First Defendant |
| MAREA LUISA FULFARO-ALDERUCCIO | Second Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May 2019 |
DATE OF JUDGMENT: | 20 June 2019 |
CASE MAY BE CITED AS: | Alderuccio v Alderuccio |
MEDIUM NEUTRAL CITATION: | [2019] VSC 404 |
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SUMMARY RECOVERY OF LAND – Application under order 53 – Plaintiff as registered proprietor of land permitted his son and daughter-in-law to occupy the land ‘for a time’ – Son claims his father said ‘you can have it’ or ‘you will get everything when I die’ – Son made improvements on the faith of the his father’s representation or promise – Father and son ‘fell out’ over attempts by son to put father into a nursing home – Father now suffering a disability and represented by litigation guardians, being father’s sister and friend who are appointed administrators for him – Father and administrators request son and daughter-in-law to leave the land – Son refuses and claims an interest in the land pursuant to a resulting implied or constructive trust and lodges a caveat to protect that claimed interest – Whether, assuming a constructive trust arises, it gives son possessory rights superior to the father – Whether in the interests of justice to make an order for recovery of possession – No order for possession – The son is arguably entitled to an interest in fee simple in the land pursuant to an equitable proprietary estoppel of the Dillwyn v Llewelyn (1862) De GF & J 517; 45 ER 1284, and Ramsden v Dyson (1866) LR 1 HL 129 kind – Giumelli v Giumelli (1999) 196 CLR 101; Donis v Donis (2007) 19 VR 577; Sidhu v Van Dyke (2014) 251 CLR 505 and McNab v Graham (2017) 53 VR 311, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K Mihaly | Local Lawyers |
| For the Defendant | Defendants in person |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Background facts................................................................................................................................ 1
Procedural history.............................................................................................................................. 9
Order 53 – recovery of possession................................................................................................. 10
Self-represented litigants................................................................................................................ 11
Equitable proprietary estoppel...................................................................................................... 12
Submissions and consideration.................................................................................................... 14
Conclusion......................................................................................................................................... 18
HIS HONOUR:
Introduction
The plaintiff, who is an elderly disabled man, applies pursuant to ord 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) to recover possession of the land at 14 Pebble Beach Court, Sunbury, Victoria (Property).[1] The plaintiff is the sole registered proprietor of the Property. The Property is occupied by the plaintiff’s son Frank Alderuccio (Frank) and his wife, Marea Fulfaro-Alderuccio. Frank claims to be entitled to an interest in the Property, but is unrepresented and is unable properly to identify that interest.
[1]Being the land more particularly described in Certificate of Title 11229 Folio 254.
The proceeding has an unfortunate history going back to May 2018. The delays that have occurred have mainly been a product of the fact that time needed to be given to the defendants to file affidavit material in answer to the claim, and they encountered delays in doing so.
It is unfortunate that, for the reasons I set out below, this is not a case where, as Counsel for the plaintiff submitted, the most that the defendants, and particularly Frank, can hope for is to share in the proceeds of a sale of the Property or to receive equitable compensation for improvements he has made to the Property. That is because, if Frank is entitled to an interest in the Property, the interest may amount to an interest in the whole Property, including an interest in possession.
Background facts
By order of the Victorian Civil and Administrative Tribunal (VCAT) made on 3 April 2017, 11 April 2017 and 16 May 2018, Raffaella Evangelista, a close friend of the plaintiff, and Carmela Guarino, the plaintiff’s sister, were appointed as joint administrators of the plaintiff’s estate under the relevant provisions of the Guardianship and Administration Act 1986 (Vic) (Administrators). By order of VCAT made on 15 May 2019, the administration order previously made was revoked and the Administrators were reappointed for the limited purpose of conducting this proceeding. Notwithstanding the revocation of the previous administration order, the tribunal was satisfied that the plaintiff has a disability, is unable by reason of that disability to make reasonable judgements about his estate and needs an administrator.[2]
[2]Order of VCAT made 15 May 2019, exhibit SPK-1 to the affidavit of Stephen Kirby made 21 May 2019.
At the commencement of the proceeding, the Administrators were appointed the litigation guardians of the plaintiff. They give evidence (on information from the plaintiff which they believe to be true) that in or about September 2012 the plaintiff said that the first defendant (Frank) could stay at the Property for a time to help him ‘get on his feet’. At the time it suited the plaintiff for Frank, and the second defendant (Marea) to stay at the Property so that it was not left vacant and unattended. The Property had originally been owned by the plaintiff’s other son, Jamie, who suffered a heart attack and died on about 28 May 2012. Before Jamie died he was having difficulty servicing the mortgage over the Property so, in circumstances not presently clear, the plaintiff paid off the mortgage and it was transferred to him.
Frank’s evidence is that some two months after Jamie died, he had a discussion with the plaintiff, his father, about the Property. He said to the plaintiff words to the effect ‘what are you going to do with Jamie’s house?’ The plaintiff said to Frank, words to the effect, ‘I have no need for it, you and Marea can move in. You can have it’.[3] According to Frank, this conversation took place at the plaintiff’s home in Keilor and was repeated on subsequent occasions.
[3]Affidavit of Frank Alderuccio made 1 November 2018, [18].
Frank found this offer appealing because he and Marea had been renting a house in Reservoir for about 10 years. Frank swears that he wanted to be sure that his father meant what he had said and asked ‘do you want to rent the house to me or to someone else?’. The plaintiff responded ‘I have more than enough money to support myself. I want to do this for you. It will make me happy to help you out’. The plaintiff repeated this to Frank on several subsequent occasions. Frank and Marea moved into the house on the Property and have made it their home and live there ever since.
After moving to the Property, Frank had several discussions with the plaintiff and Marea about transferring the Property into Frank’s name. Frank says that this was raised by the plaintiff on each occasion. The first conversation took place at the plaintiff’s home at Keilor in 2012 when he said words to the effect ‘Raffaella has said that if I transfer the property to you I might be able to claim the pension’. Frank did not think that pension entitlements were so easily obtained and suggested to his father that he should discuss the matter with his financial advisor and solicitor and then get back to him. The plaintiff raised the issue again in 2013 or 2014 and the same conversation seems to have taken place. Frank was unconcerned that the Property had not been transferred into his name as he had had several discussions with his father in which his father told him ‘you are my son. Everything will be yours – the house, the cars, the money, you will get everything when I die’.
When Frank moved into the house on the Property, the rates had already been paid for the 2013 year. Frank paid the rates for the 2014, 2015 and 2016 years. He did not receive a rate notice after that and after inquiring from the municipal Council was advised that the plaintiff had paid the rates for the 2017 year. He has not received any rates notice since.
Frank had several conversations with the plaintiff about renovating the house on the Property. He says there was no issue of having to seek permission, it was more a case of telling him what he was doing. Before starting each project, referred to below, Frank told his father what he intended doing. He then discussed the projects with his father whilst they were being undertaken, and afterwards.
Frank swears that he undertook the renovations on the faith of the plaintiff’s promise that the Property was Frank’s. Frank spent about $100,000 in removing trees and other plants, boxing the driveway and surrounding garden, constructing a new carport, installing a spa, rear decking, a windmill, a wishing well and a bird aviary in the back yard, installing a bamboo feature wall, a water feature, pouring a concrete slab, replacing all taps in the house, replacing the tiling in the bathroom and toilet, installing a new toilet, and repainting and converting the garage into an insulated carpeted games room.
In undertaking this work, the plaintiff’s best friend, Joe Perlino, who had experience in the building industry, assisted Frank in undertaking some of the work. He discussed the work with Joe and his father on many occasions. At one time the plaintiff visited the Property with his friend Joe and after being shown all the improvements undertaken by Frank indicated he was very happy with what had been done and said words the effect ‘I am very proud of you’.
Sometime before the first request made by the plaintiff for Frank and Marea to vacate the Property, Frank attempted to have the plaintiff move into a nursing home. According to Frank, the plaintiff believed he could look after himself and refused to be admitted to a nursing home. He became angry with Frank and the relationship between them soured from then on.
The first formal request sent to Frank to vacate of the Property was sent by the plaintiff’s first set of solicitors, Septimus Jones & Lee, on 14 August 2017. Frank was asked to vacate by 9 October 2017. Further letters were sent on 31 August and 6 September 2017. This led Frank to visit his father on 5 September 2017. The plaintiff has informed the Administrators that at this meeting Frank told the plaintiff that he ‘cannot afford to buy property’ and that the plaintiff told him he could stay there until 19 November 2017, but must leave by then. Frank’s version of the meeting is rather different. He says he visited his father to seek to resolve the question of the Property. Frank asked his father if he wanted to sell the Property. His father did not respond. Frank asked him if he wanted him to pay rent, and his father responded by saying ‘you would not keep up the payments’. Frank said that he had rented their previous property for 10 years. His father responded by saying words to the effect ‘I don’t need any money and I don’t want any money from you. I will destroy you for trying to put me in a nursing home’.
Frank then wrote a long letter to the plaintiff’s solicitors setting out some of the history of the matter and repeating that the plaintiff had gifted the Property to him. He also says in that letter:
My father has also agreed to pay for any improvements I have made to the property. As I believed that this was my property we have spent a lot of funds improving the home. I will assess what I have done at which point we can discuss a settlement.
If my father does change his mind for any reason about renting the property to me please let me know as soon as possible.
By letters dated 20 September and 10 October 2017 from the plaintiff’s solicitors to Frank, they referred to the plaintiff agreeing to extend the date to vacate and asked that he confirm that he would be leaving the Property on or before 19 November 2017. It was stated in the first of those letters that upon the sale of the property, the plaintiff, through his Administrators, will come to an agreement with Frank in relation to the house improvements.
On 20 November 2017, the plaintiff went to the Property. According to Frank he was not well. He refused refreshments and refused to discuss his health or Frank’s continuing occupation of the Property. According to the Administrators, Frank said when asked to leave that he would not do so whereupon the plaintiff said ‘I will see you in court’. According to Frank, the plaintiff said ‘I don’t need money, I will win, I will destroy you’.
By letter dated 27 November 2017, the plaintiff’s solicitors notified Frank that they intended to commence proceedings to evict him. The plaintiff’s Administrators then changed solicitors to FCG Legal, and these new solicitors served on Frank a notice to vacate by 25 February 2018 pursuant to the Residential Tenancies Act 1997 (Vic).
Frank then engaged solicitors who wrote to the plaintiff’s solicitors pointing out that the notice to vacate was defective as there was no residential tenancy in place. They also stated their instructions that Frank had made significant capital improvements to the property and that he has an underlying right to it, in fact a proprietary interest in the property. They went on to ask, quite politely, if the plaintiff’s solicitors could outline in more detail their client’s grievances with Frank and what they were seeking to achieve so that further instructions could be obtained.
The plaintiff’s solicitors responded on 6 February 2018, denying that the notice to vacate was defective and stating:
Our client instructs, through his administrators, that he requires vacant possession of the property to enable it to be sold so as to consolidate his available assets to assist his day-to-day living. This was advised to your client previously. Our client invite your client make an offer to purchase the property before the property is offered to the public for purchase.
Our client had not given your client permission to make any improvements to the premises and had not made an agreement to pay for any improvements made by your client.
Frank’s solicitor responded by letter on 21 February 2018 as follows:
Our client instructs that Mr Antonio Alderuccio, prior to the appointment of an Administrator and before our client started living there, gave a clear assurance that he could reside in the house… for as long as he chose. Our client was assured by his father that as long as he paid the council rates and kept property tidy, he was not going to be asked to leave. We understand on some occasions Mr Antonio Alderuccio even paid the council rates to assist financially to ensure that our client would remain.
Relying on the promises and assurances made by his father, our client has made substantial capital improvements to the property, which he estimated to be about one hundred thousand dollars in value. These improvements, made at our client’s expense in both money and labour, include a new carport, garage, and two decking areas. These works were all undertaken with the knowledge and approval of Mr Antonio Alderuccio. Mr Antonio Alderuccio spoke with pride of the quality of the improvements and the work that his son had done when he visited the property from time to time. These improvements, made with the labour and funds of our client have led to a considerable capital gain. We attach some photographs of the works in progress and as completed.
We are firmly instructed that the administrators assertion that Mr Antonio Alderuccio did not give permission to make any improvements to the premises is incorrect.
This property is our client’s home that he was told by his father he was free to live in with his family. Our client by his actions, clearly accepted the words of his father. [Your] clients administrators now insist that our client vacate the property in order that it be sold to ‘consolidate his available assets’. We are instructed not to accept this position.
Mr Antonio Alderuccio holds a portion of his registered interest in the property on trust for our client, and his administrators cannot properly simply demand our client vacate the property for sale without acknowledging his rights as a co-owner and /or providing compensation. The trust arises from the repeated assurances Mr Antonio Alderuccio made and the capital contributions and property outgoings our client arranged and paid for.
The letter went on to put a proposal for Frank to continue to live in and maintain the Property and to agree to a sale of the Property should the proper administration of the plaintiff’s affairs result in such a depletion of his liquid assets that it was necessary. The quantification of Frank’s interest could be deferred until the sale of the property or could be negotiated now, the letter said. If the interest were quantified by agreement now, Frank expected his interest to be recorded on title. The letter informed the Administrators’ solicitors that Frank’s solicitors had advised him he has a proper basis to lodge a caveat, and will do so. A caveat was lodged claiming a freehold estate pursuant to an implied, resulting or constructive trust and prohibiting absolutely the lodgement of any dealing.
The plaintiff’s Administrators again engaged new lawyers (their third set of lawyers) who, by letter dated 9 March 2018, wrote to Frank’s solicitor denying that the plaintiff permitted Frank to remain at the Property indefinitely, saying that in about 2012 the plaintiff granted Frank permission to stay in the property rent free for a short time and ‘this consent has been withdrawn’. The letter:
(a) denied that Frank made improvements to the property and asserted that the works were conducted without the plaintiff’s consent and without the relevant necessary permits. Accordingly, Frank must remove these works;
(b) denied that the Property is held by the plaintiff on trust for Frank and stated that Frank, having been a licensee, has remained in occupation without the plaintiff’s consent;
(c) demanded that, in those circumstances, unless within 14 days Frank confirmed that he will ‘remove the works’ and vacate the Property, instructions will be sought to commence proceedings pursuant to ord 53 of the Rules to recover the Property.
Frank’s solicitor responded on 27 March 2018 referring to the earlier correspondence from Septimus Jones & Lee, dated 20 September 2017, in which it was said ‘upon the sale of the property, your father through his Administrators will come to an agreement with you in relation to the house improvements' (above at [16]). It was pointed out that this was an admission of the plaintiff’s knowledge of the improvements being conducted at the property. The letter stated that the plaintiff had been informed with regard to the improvements and was advised every step of every project and that Frank would not be removing the works nor vacating the property.
The next relevant event is the issue by the Hume City Council to the plaintiff of a Notice of Entry pursuant to the Building Act 1993 (Vic), issued on 4 April 2018. An inspection was undertaken pursuant to this Notice and Frank, who was present, requested the Council officers to give him any report so that he could attend to the requirements, such as rectifying defects and obtaining the necessary permits. He was told that they could not provide him with any report. It had to go to the registered proprietor. The inspection was followed by a Building Notice dated 7 May 2018 requiring the plaintiff to show cause why certain of the works undertaken by Frank at the Property should not be demolished. That notice was not given to Frank either by the Council or by the plaintiff until it was annexed to the affidavit of the Raffaella Evangelista made in support of this application. Frank swears that some of the improvements the subject of the Building Notice were in existence before he commenced his occupation of the Property. Later the Hume City Council issued a Building Order requiring certain improvements at the Property to be demolished.
It seems likely, having regard to the plaintiff’s solicitors letter of 9 March 2018 (see above at [23]), that the plaintiff, the Administrators or their solicitor notified the Hume City Council of the works in question.
Evidence is given on behalf of the plaintiff that he does not receive any government pension and all his health needs, in particular the cost of his home care, amounting to over $10,000 from March 2018 to May 2018, are paid out of his own resources. He is a self-funded retiree. It has been necessary for his Administrators to sell his shares in listed companies to fund his support. He has approximately $463,000 in his superannuation fund and his Administrators are reluctant to diminish these funds because they are his only source of income.
Frank was previously the enduring attorney for the plaintiff until he was removed by order of VCAT in April 2017. When he managed the plaintiff’s affairs he says the plaintiff received about $4000 per month from his superannuation fund and the capital was not diminishing.
Procedural history
The originating motion by which the plaintiff seeks to recover possession was issued on 31 May 2018. It came before a judge of the court on 18 July 2018, at which time the defendants appeared in person. The court made orders for the filing of affidavits by the defendants and any further affidavits by or on behalf of the plaintiff, and adjourned the proceeding for further directions to 27 August 2018. It would appear that there were discussions at that time relating to a possible judicial mediation of the proceeding if the defendants were able to obtain legal representation.
The defendants did obtain legal representation for a time. When the matter came back to court on 27 August 2018 for further directions, the defendants were represented. In the meantime, no affidavits had been filed by or on behalf of the defendants. Orders were made for the filing of affidavits by the defendants and responses by the plaintiff, and the matter was adjourned to a date to be fixed for hearing on an estimate of one day. The matter was also referred to private mediation to be held by 9 November 2018. An affidavit by Frank made 1 November 2018 was filed by the defendants’ solicitors on 27 November 2018. On the same day, the defendants recently appointed solicitors filed a notice of ceasing to act.
The proceeding returned to the court for further directions on 30 November 2018 and directions were again made for further affidavits and for the filing and service of outlines of submission by the parties by 21 February 2019.
Between the dates of the directions hearings, the solicitors for the plaintiff wrote to the solicitors for the defendants regarding their failure to comply with orders for the filing and service of affidavits and, after receiving Frank’s affidavit, put the defendants on notice that if they intended to rely on the claim that they had an equitable right to ownership of the Property, they must issue a fresh proceeding as a matter of urgency. No response was received to these communications.
Order 53 – recovery of possession
Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances. The pre-requisites to the application of the Order are that the persons in occupation of the land are –
(a) a person who entered into occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff; or
(b) persons who, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff.[4]
[4]See Pappas v Bowmark Pty Ltd [1998] VSCA 120, [13] (Pappas).
I have summarised the law applicable to the summary recovery of land in a number of earlier decisions and I will not repeat them, except insofar as necessary, in these reasons.[5] It is however appropriate to point out that the procedure is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby ‘trespassers’ are keeping the proprietor out,[6] and is intended to apply only in clear cases where there is no issue to try.[7] However, the existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.[8] Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules.[9] If the Court, in its discretion, decides to exercise the jurisdiction to resolve the issue, it should be undertaken with great care.[10]
[5]Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241, [34]-[45]; upheld on appeal in Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 354; Tajon Pty Ltd v Arvanitis and Anor [2017] VSC 130, [27]-[34].
[6]Pappas [1998] VSCA 120, [13].
[7]Palazzo v Pullen (Supreme Court of Victoria, Brooking J, 24 July 1992, BC9200663).
[8]Pappas [1998] VSCA 120, [13]; Melbourne Anglican Trust Corporation v Greentree (Supreme Court of Victoria, Vincent J, 29 May 1997); Tolhurst Druce & Emerson v Maryvell Investments Pty Ltd [2007] VSC 271, [193]–[195]; Byrne v Ritchie [2009] VSC 114, [17].
[9]Palazzo v Pullen (Supreme Court of Victoria, Brooking J, 24 July 1992, BC9200663).
[10]Melbourne Anglican Trust Corporation v Greentree (Supreme Court of Victoria, Vincent J, 29 May 1997); Max Moar & Quuenbridge Pty Ltd v Shazia Duman [2007] VSC 266, [2].
Self-represented litigants
It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law.[11] Procedural fairness is ‘an essential attribute of a court’s procedure’.[12] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[13] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain both the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.[14]
[11]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v The Queen (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[12]Assistant CommissionerCondon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156].
[13]Abram v Bank of New Zealand (1996) ATPR 41–507, 43,341, 43,347 ; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, [27]-[29], [33]; Platcher v Joseph [2004] FCAFC 68, [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[14]Tomasevic v Travaglini (2007) 17 VR 100, 130.
In the decision of the Court of Appeal in Roberts v Harkness,[15] which was applied in Doughty-Cowell v Kyriazis,[16] the Court made it clear that a litigant must have a reasonable opportunity of presenting her case. What amounts to a reasonable opportunity of presenting a case depend on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal.[17]
[15][2018] VSCA 215.
[16][2018] VSCA 216.
[17]Roberts v Harkness [2018] VSCA 215, [8]-[49].
In this case, Frank spoke for both defendants and showed the that he had a good grasp of the facts, but a limited understanding of the law. His affidavit had plainly been prepared by the solicitors that acted for him and his wife during the short period that I have mentioned. That affidavit lays the foundation for the equitable interest claimed in the Property. In other respects, the defendants effectively placed their claim to such an equitable interest in the hands of the court, to be dealt with according to the law as applied to those facts.
Equitable proprietary estoppel
There is a great deal of law on the subject of constructive trusts. Not all of it, by any means, is capable of applying to the facts of this case. What follows is a selection of the relevant principles.
A constructive trust may be imposed upon a legal entitlement to property in order to prevent a person from asserting or exercising his or her legal right in respect of that property in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct.[18]
[18]Muschinski v Dodds (1985) 160 CLR 583, 620, 623.
Authority has existed for a very long time for the proposition that where an owner of land creates or encourages an expectation in another, that the other will have an interest in the land, and the other acts upon that expectation, then the owner will be compelled to give effect to it.[19] In Sidhu v Van Dyke[20] the High Court reiterated the requirements of proprietary estoppel as analysed in Giumelli v Giumelli:[21]
In Giumelli v Giumelli, it was said that the category of equitable estoppel that is usually traced back to the decisions in Dillwyn v Llewelyn and Ramsden v Dyson is now a ‘well recognised variety of estoppel as understood in equity’, which affords relief ‘found in an assumption as to the future acquisition of ownership of property … induced by representations upon which there had been detrimental reliance by the plaintiff’.[22]
[19]Dillwyn v Llewelyn (1862) De GF & J 517; 45 ER 1284; Ramsden v Dyson & Thornton (1866) LR 1 HL 129.
[20](2014) 251 CLR 505.
[21](1999) 196 CLR 101 (Giumelli).
[22]Sidhu (2014) 251 CLR 505, 511 [2] (French CJ, Kiefel, Bell and Keane JJ) (citations omitted); McNab v Graham (2017) 53 VR 311, [66].
There is authority for the proposition that there is an overlap between common intention constructive trusts and trusts arising in accordance with the principles of proprietary estoppel,[23] that the two doctrines rest on the same foundation and have reached the same conclusions[24] and share the aim of frustrating unconscionable conduct.[25] Be that as it may, there is a well-established jurisdiction in equity for the Court to declare a constructive trust over property based on proprietary estoppel of the kind recognised since Dillwyn v Llewelyn and Ramsden v Dyson and as restated in Giumelli and Sidhu.
[23]A J Oakley, Constructive Trusts, (Sweet & Maxwell, 3rd ed, 1997) 76, cited in McNab v Graham (2017) 53 VR 311, [119].
[24]Secretary, Department of Social Security v Agnew (2000) 96 FCR 357, 363 [13] (Agnew) citing Grant v Edwards [1986] Ch 638, 656; cited in McNab v Graham [2017] VSCA 352, [120].
[25]Agnew (2000) 96 FCR 357, 363 [14], cited in McNab v Graham (2017) 53 VR 311, [120].
What the Court may order in any particular matter depends on all the circumstances of the case.[26] Before a constructive trust is imposed, the court should first decide whether, having regard to the issues in the litigation, there is an appropriate equitable remedy which falls short of the imposition of a trust.[27] In cases of this kind, however, the High Court noted in Giumelli and reinforced in Sidhu, prima facie the estopped party can only fulfil their equitable obligation by making good the expectation which they have encouraged.[28] If, however, the promisee has been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant’s assurances, then it might not be unconscionable for the estopped party to resile from the promise on condition that reimbursement be provided to the promisee for that outlay.[29]
[26]Giumelli (1999) 196 CLR 101, 113 [10].
[27]Ibid.
[28]Giumelli (1999) 196 CLR 101, 112 [6], 123-125 [40]-[48]; Sidhu (2014) 251 CLR 505, 530 [85].
[29]Sidhu (2014) 251 CLR 505, 529 [84]; McNab v Graham (2017) 53 VR 311, [70].
In Donis v Donis[30] Nettle JA observed, in relation to what was often called the ’minimum equity’, that is, where equitable estoppel permits a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more:[31]
As the more recent decision in Giumelli v Giumelli shows, however, there is no such restriction in cases where the expectation which is encouraged is the acquisition of an interest in property. In such cases the remedy relates to the understanding of the parties and the expectation that has been encouraged. Prima facie the estopped party can only fulfil his or her equitable obligation by making good the expectation which he or she has encouraged. The estopped party, having promised to confer a proprietary interest on the party entitled to the benefit of the estoppel, and the latter having acted upon the promise to his or her detriment, is bound in conscience to make good the expectation. It follows that the detrimental reliance that supports the estoppel need not constitute in any sense a consideration moving to the party bound. It is a unilateral element of the estoppel and not the price paid for it.
The prima facie position will yield to individual circumstances. Principle and authority compel the view that where a plaintiff’s expectation or assumption is uncertain or extravagant or out of all proportion to the detriment which the plaintiff has suffered, the court should recognise that the claimant’s equity may be better satisfied in another and possibly more limited way. Thus, as was also said in Giumelli, before granting relief the court is required to consider all of the circumstances of the case, including the possible effects on third parties, and to avoid going beyond what is required for conscientious conduct or would do injustice to others. But that does not mean that the court is required to be “constitutionally parsimonious” or that it is necessary for there to be substantial correspondence between expectation and the monetary value of the detriment suffered, or which but for the relief to be accorded would be suffered. The object of the exercise is to do equity and for that purpose “detriment” is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances. [emphasis added]
[30](2007) 19 VR 577 (Donis).
[31]Ibid, [19]-[20] (footnotes omitted).
Submissions and consideration
The plaintiff submitted that:
(a) the evidence showed that the defendants were let into possession of the Property under a licence which has now been revoked, thus giving jurisdiction to the court to make an order pursuant to ord 53;
(b) the claim for possession does not allow for consideration of Frank’s claim for an equitable interest in the Property, and the matter ought to be heard and determined on the basis of the plaintiff’s claim for possession without any determination of the claim by Frank to an equitable interest;
(c) taking Frank’s claim to an equitable interest at its highest, the plaintiff is still entitled to possession of the Property. That is because Frank’s claim could give rise to a partial interest in the Property, in equity, but cannot give rise to an interest in possession.
In advancing this last submission, Counsel for the plaintiff relied upon the decisions in Elddin v Hamed (No 2)[32] and Quinn v Bryant.[33] Elddin involved a trial of a claim by the registered proprietor of property to recover possession from the defendants. The plaintiff had purchased the property from the trustee in bankruptcy of the first defendant and borrowed moneys from both defendants to do so. The borrowings were entirely in cash. The first defendant remained a bankrupt. The defendants maintained that they had agreed with the plaintiff that they were to become co-owners of the property with the plaintiff and the monies the plaintiff said were a loan were a contribution to the purchase price. The defendants claimed to have an interest in the property arising under a resulting or constructive trust.[34]
[32][2015] NSWSC 654 (Elddin). The decision was unsuccessfully appealed, but not so as to affect the point for which Counsel for the plaintiff advanced the decision: Hamed v Elddin [2016] NSWCA 9.
[33][2011] NSWSC 1153 (Quinn).
[34]It is noteworthy that the first defendant’s trustees in bankruptcy were not joined, as they should have been.
In Elddin Button J was not satisfied on the balance of probabilities that the defendants were providing a contribution to the purchase price of the property, and so no resulting trust, or other trust, arose.[35] His honour also considered what the position would be if the moneys provided to the plaintiff were a contribution to the purchase price with the result that the defendants, or one of them, had an equitable interest in the property. He concluded that, even then, the defendant could not exclude the plaintiff from possession of the property; and that, at most, the interest in the property would entitle the defendants to have the property sold and an account to them from the proceeds of its sale that reflected their contribution to the purchase price of the property.[36]
[35]Elddin [2015] NSWSC 654, [84]-[86].
[36]Ibid, [101].
The facts and circumstances of the decision in Elddin v Hamed (No 2)[37] are significantly different from those facing the court in this case:
[37][2015] NSWSC 654.
(a) First, the primary finding in Elddin v Hamed (No 2) was that there was no resulting or constructive trust. For reasons that will be explained, this proceeding as presently constituted is not an appropriate vehicle for the determination of whether or not Frank is entitled to any interest in the Property sufficient to give him possessory rights;
(b) Second, that case was a trial of a claim to possession where the witnesses were cross-examined and the judge made findings of facts in dispute. This case is an application pursuant to the summary jurisdiction of the court under ord 53 of the Rules where it is not appropriate to make such findings unless it is possible to resolve the dispute readily and fairly.[38] Moreover, having regard to the fact that the defendants appeared in person, it is simply not possible to give the resolution of the factual disputes the ‘great care’ that is required in such a case;[39]
(c) Third, the claim in this case is one of proprietary estoppel of the Dillwyn v Llewelyn and Ramsden v Dyson variety which commonly give rise to possessory rights. Properly understood, possession of the Property is a part of the claim made by Frank in this case. If Frank’s case is successful at its highest, it is a promise of a gift of the Property that he relied upon to his detriment such that it would be unconscionable for the plaintiff to deny the gift.
[38]Pappas [1998] VSCA 120, [13]; Melbourne Anglican Trust Corporation v Greentree (Supreme Court of Victoria, Vincent J, 29 May 1997); Tolhurst Druce & Emerson v Maryvell Investments Pty Ltd [2007] VSC 271, [193]–[195]; Byrne v Ritchie [2009] VSC 114, [17].
[39]Melbourne Anglican Trust Corporation v Greentree (Supreme Court of Victoria, Vincent J, 29 May 1997); Max Moar & Quuenbridge Pty Ltd v Shazia Duman [2007] VSC 266, [2].
The Quinn decision was a trial where the plaintiffs grand-daughter claimed an interest in a house on the basis of an equitable proprietary estoppel. There were a variety of other issues, but the claim to an equitable proprietary estoppel was successful. Sackar J concluded, however, that in all the circumstances of the case an award of damages in favour of the grand-daughter was the appropriate course.[40] The decision is entirely fact dependant.
[40]Quinn [2011] NSWSC 1153, [147].
Counsel for the plaintiff contended that this was a case where the minimum equity to which Frank could be entitled was a monetary interest in the Property, or equitable compensation, but not a possessory right. In part, this was advanced in the context of the characterisation of Frank’s claim being simply a constructive trust arising from contributions he made to the improvement of the Property. But this case is much more than that because of the promissory element giving rise to a proprietary estoppel and the possibility of a constructive trust in respect of the whole property, including the right to possession. In this respect, the words of Nettle JA in Donis are apt and I repeat them:
The object of the exercise is to do equity and for that purpose ‘detriment’ is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances.[41]
[41](2007) 19 VR 577, [20].
Contrary to the submissions of the plaintiff, in particular that this is a case where Frank has been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the plaintiff’s promises, so that it might not be unconscionable for the plaintiff to resile from his promises on condition that he reimburse Frank for his outlay, this is a case where other observations of Nettle JA in Donis may be applicable:[42]
… here the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature, it is in my view beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based.[43]
[42]Donis (2007) 19 VR 577, [34].
[43]Verwayen at 462, per Deane J; and see also Gillett v Holt [2001] Ch 210 at 233, per Robert Walker LJ.
Despite the defendant’s solicitors advancing the proposition that the plaintiff holds ‘a portion’ of his registered interest in the property on trust for Frank, properly analysed Frank’s claim may be to an interest in fee simple in the whole Property on the basis of a proprietary estoppel. The fact that Frank may have said he would accept compensation for the improvements he has made to the Property needs to be seen in the context of his limited representation and his appearance before the court representing himself and his wife. In order to ensure that the defendants are dealt with fairly as self-represented litigants, it is incumbent on the court to allow them some latitude, particularly in respect of the identification of what their rights at law or in equity might be.
The defendants have lived at the Property for about seven years and commenced to do so, arguably, on the basis of a promise that the Property was, in substance, a gift. It is their home, and they should have a proper opportunity of substantiating the interest Frank claims to have in the Property.
Conclusion
For these reason, this is not an appropriate case in which to make orders under ord 53 for the plaintiff to recover possession of the Property from the defendants. This is a case where the proceeding should either be dismissed or ordered to continue as if begun by writ pursuant to Rule 4.07 of the Rules.[44]
[44]Palazzo v Pullen (Supreme Court of Victoria, Brooking J, 24 July 1992, BC9200663).
Although I shall hear the parties as to the appropriate orders, it seems to me that the orders should be as follows:
(a) Pursuant to r 4.07 of the Rules, the proceeding continue as if commenced by writ;
(b) By 4pm on 11 July 2019, the plaintiff file and serve a statement of claim;
(c) By 4pm on 1 August 2019, the defendants file and serve a defence and any counterclaim.
(d) By 4pm on 22 August 2019, the plaintiff file and serve a reply and defence to any counterclaim.
(e) By 12 September 2019 the parties complete discover and inspection of documents in accordance with the Rules.
(f) The proceeding is adjourned for further directions to 17 September 2019, at 10.30 am in Court 3, 436 Lonsdale Street, Melbourne.
(g) The costs of the plaintiff’s application shall be the parties costs in the proceeding.
(h) Reserve liberty to the parties to apply generally.
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