Bell v Eldridge & Anor

[2007] NSWSC 1171

CITATION:	Bell v Eldridge & Anor [2007] NSWSC 1171
HEARING DATE(S):	30 April, 1 and 2 May 2007
JUDGMENT DATE :	18 October 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Judgment for the Defendants.
CATCHWORDS:	CONTRACT – SPECIFIC PERFORMANCE – ESTOPPEL – Whether sufficient evidence of oral contract for transfer of land – whether oral terms too vague to create enforceable contract or estoppel. - CONVERSION – Whether plaintiff had been denied right to remove demountable house from defendants’ property. - EMPLOYMENT – Whether sufficient evidence of hours worked by plaintiff.
PARTIES:	Kathleen Ann Bell – Plaintiff Raymond Eldridge – First Defendant Florenville Pty Ltd – Second Defendant
FILE NUMBER(S):	SC 3718/04
COUNSEL:	D.A. Hassall – Plaintiff G.A. Sirtes – Defendants
SOLICITORS:	Jeanine Lloyd & Assoc – Plaintiff Baker Deane & Nutt – Defendants

3718/04 Bell v Eldridge

JUDGMENT
18 October, 2007

Introduction

1    The Plaintiff, Mrs Kathleen Bell, is the daughter of the First Defendant, Mr Raymond Eldridge. Mrs Bell and her brothers, Glen, Timothy and Anthony, are directors and shareholders of the Second Defendant, Florenville Pty Ltd. Florenville carries on a haulage and transport business. Mr Eldridge manages Florenville’s business and is a shareholder in the company, although he is not a director. 2    Mr Eldridge is the sole registered proprietor of a property comprising some 280 acres at Rossi in New South Wales (“the Rossi Property”). The Rossi Property is divided into parcels of 40 acres but all parcels remain on the same title. 3    In 1990, Mrs Bell and her late husband, Walter, moved into a dilapidated house on the Rossi Property. In late 1995, Mr and Mrs Bell bought a demountable house and placed it on the Rossi Property with the permission of Mr Eldridge. They lived there rent free. Mr Bell died in 1997. Mrs Bell left the house in 2001. Mrs Bell now claims beneficial ownership of the land on which the house is erected. She also claims damages against Mr Eldridge for conversion or detinue of the house. 4    As against Florenville, Mrs Bell claims for wages and other employment benefits due, but not paid to her. 5    The pleading of Mrs Bell’s case has been unnecessarily prolix and confusing. The Defendants have made several successful strike-out applications. Many parts of the Statement of Claim have been struck out, only to reappear in subsequent versions. The final pleading, a Second Further Amended Statement of Claim, remains prolix ­– it is some 37 pages and 114 paragraphs in length, and it is not easy to understand. What should have been a straightforward factual case has become unnecessarily complicated and expensive for the parties through want of clarity and precision in pleading. I will endeavour to distill Mrs Bell’s case, as pleaded, in the following summary. 6    In respect of claims relating to the demountable house purchased by Mr and Mrs Bell, the Second Further Amended Statement of Claim alleges that:


– in 1996 Mr and Mrs Bell made an oral agreement with Mr Eldridge that Mr and Mrs Bell would buy a demountable house and bring it onto the Rossi Property, and that they and their two children would live in the house, free of rent and other charges;

– the house would remain the property of Mr and Mrs Bell, notwithstanding that it was placed upon Mr Eldridge’s land;

– when Mr and Mrs Bell had repaid the loan for the purchase of the house, Mr Eldridge would carry out a subdivision of the Rossi Property and would transfer to Mrs Bell absolutely and for no consideration title to approximately 2.6 hectares of land upon which the house was erected (“the Land”);

– in reliance on their oral agreement with Mr Eldridge, Mr and Mrs Bell purchased the demountable house for approximately $104,000, borrowed the sum of $85,000 from the Commonwealth Bank to effect the purchase, moved the house onto the Rossi Property and resided there.

– in breach of the oral agreement, Mr Eldridge has:

– refused to carry out the subdivision of the Rossi Property and to transfer title of the Land to Mrs Bell;

– denied Mrs Bell access to the house so that she cannot live there;

– converted the house to his own use by preventing Mrs Bell from removing it from the Rossi Property.

7    By way of relief, Mrs Bell claims:


– a declaration that, by virtue of the oral agreement between Mr and Mrs Bell and Mr Eldridge for the transfer of the Land, she has a beneficial interest in the Land or an equitable charge over the Land to secure a sum of $215,000;

– an order for specific performance of the oral agreement, requiring Mr Eldridge to carry out a subdivision of the Rossi Property and to transfer the Land to Mrs Bell absolutely;

– alternatively, that by virtue of representations made by Mr Eldridge in terms of the oral agreement and reliance upon such representations by Mrs Bell to her detriment, Mr Eldridge is estopped from asserting title to the house and to the Land;

– a declaration that Mr Eldridge holds the Land upon a constructive trust for Mrs Bell and her children to permit them to reside in the house;

– damages for detinue or conversion of the house.

8    Mr Eldridge denies that he made any enforceable agreement with Mr and Mrs Bell that he would transfer the land to her, or that he made any representations to that effect. 9    As to ownership of the house itself, Mr Eldridge did not admit in his Defence that Mr and Mrs Bell owned the house, as distinct from the Land. However, in the Defendants’ Outline of Contentions delivered a few days before commencement of the trial, Mr Eldridge said that, “on a without admission basis” he did not contest Mrs Bell’s entitlement to remove the house from the Rossi Property. However, when Mrs Bell’s solicitor informed Mr Eldridge’s solicitor in October 2002 that Mrs Bell intended to enter the Rossi Property to remove the demountable house, Mr Eldridge expressed no opposition. That appears to have remained the position between the parties thereafter. 10    As to Mrs Bell’s claim against Florenville, the Second Further Amended Statement of Claim alleges that:


– in or about March 1992, Mrs Bell entered into an oral agreement with Florenville whereby she was employed as an office administrator and manager of Florenville and its subsidiary, Rayco Tiles;

– from March 1992 to 13 April 2002, Mrs Bell carried out work for Florenville in accordance with the employment agreement;

– the rates of pay under the employment agreement were:

“(a) hourly rate of $10 applied from March 1992 for limited duties part-time work (hours worked per week varied);

(b) hourly rates of $20 per hour for a 30 hour week for more extensive duties, as Office Manager” ;


– up to about December 1997, Mrs Bell received no income payments from Florenville “it having been so agreed in order to build up the business” ;

– Mrs Bell received $100 per week from January 1998 to June 2001 “in respect of part of [her] ordinary wages; and $250 per week was paid by [Florenville]” in reduction of Mrs Bell’s loan for purchase of the demountable house;

– Mrs Bell is entitled to $44,672 pursuant to the employment agreement for wages, holiday and other benefits for the period from March 1992 to 13 April 2002 and superannuation entitlements “estimated to be at least $71,218” .

11    Florenville denies that it is indebted to Mrs Bell for any outstanding wages, superannuation or benefits. Further, in its Defence it pleaded the statute of limitations in respect of any debts due and unpaid during the period expiring six years before the filing of the Statement of Claim. The Statement of Claim was filed on 24 September 2004. 12    On 16 February 2005, Acting Master Berecry struck out, as statute barred, Mrs Bell’s claim to wages and other payments due for the period from March 1992 to 23 September 1998. There has been no appeal from that order.


The issues

13    The issues may be summarised thus:


– was an agreement made between Mr and Mrs Bell and Mr Eldridge in the terms alleged;

– was the agreement in sufficiently precise terms to be enforceable as a contract or as representations capable of founding an estoppel;

– did Mrs Bell rely upon the agreement or upon what was said by Mr Eldridge, to her detriment so as to give rise to an estoppel or an equitable charge;

– was it the common intention of Mr Eldridge and Mrs Bell that Mrs Bell should have a present equitable interest in the Land;

– did Mr Eldridge deny Mrs Bell access to the demountable house or deny her right to remove it so that he is liable in damages and, if so, in what amount;

– was there an employment agreement between Mrs Bell and Florenville whereunder she would be remunerated at the hourly rate claimed;

– if so, what hours have been worked by Mrs Bell and what is the amount of her entitlement to remuneration;

– is Mrs Bell entitled to unpaid superannuation and any other employment benefits.



Whether an agreement was made

14    At the commencement of the trial I noted that a great many objections had been taken by the parties to each other’s affidavit evidence, mostly on the ground of form and relevance. Virtually all of the critical evidence as to conversations was inadmissible in form. In those circumstances, I thought it more efficient to require the parties and their witnesses to give their evidence in chief orally, and I declined to permit the affidavits to be read. 15    The critical factual issues turn upon what was said in a few conversations in 1995, 1996, 1997 and in 2001. No contemporaneous notes were taken of these conversations, although there is some correspondence between the parties and their solicitors which is of some assistance. 16    Conversations as to the purchase of the demountable house and what would happen thereafter took place between Mrs Bell and her mother, between Mr Eldridge and Mrs Eldridge, and between Mr and Mrs Bell and Mr Eldridge. It is plain that while Mrs Bell has been close to her mother, the relationship between Mr Eldridge and Mrs Bell has often been difficult. It seems that Mrs Eldridge was often the channel of communication between Mrs Bell and Mr Eldridge, not only because of the difficult relationship between them but also because Mr Eldridge’s work as a truck driver kept him away from home for much of the time. 17    The relationship between Mrs Bell and Mr Eldridge obviously suffered in 1997 when a dispute arose between Mr Bell and Mr Eldridge. Mr Bell shortly afterwards committed suicide. It is clear that Mrs Bell attributes some blame to Mr Eldridge. 18    Both Mrs Bell and Mr Eldridge say that they separately spoke to Mrs Eldridge in 1995 and 1996 about the purchase of the demountable house and about what would happen thereafter. Doubtless Mrs Eldridge could have given useful evidence about what was said. However, Mrs Eldridge was not called as a witness. I cannot draw anything from that circumstance to the advantage or disadvantage of either side. Mrs Eldridge was in Court with her husband throughout the trial and her sorrow at the conflict between her husband and her daughter was plain to see. I infer only that Mrs Eldridge did not wish to take sides and that neither party wished to force her into the witness box. 19    In 1990, Mr and Mrs Bell moved into a house on the Rossi Property, with the permission of Mr Eldridge. The house was some hundreds of metres from Mr and Mrs Eldridge’s home. Mr and Mrs Bell did not pay rent. Their first child was born in 1992, and their second was born in 1993. In 1994, Mr Bell began to work for Florenville as a truck driver. 20    In her evidence in chief Mrs Bell said that the condition of the house was very poor and that because of its age it was unsalvageable. She said that in about 1995 she discussed with her mother how the conditions in which she and her family were living might be improved. Her recollection of these discussions was very vague. 21    Mrs Bell said that at some time later in 1995 or early 1996 she came to discuss with Mr Eldridge the possibility of buying a demountable house and placing it on the Rossi Property. She discussed borrowing the necessary money in the name of Mr Eldridge and herself rather than in the names of herself and Mr Bell because they did not want Mr Bell’s ex-wife to have any possible claim against that asset. 22    The agreement for purchase of the demountable home is in evidence (Ex D2). It is dated 29 December 1995. The purchaser is shown as “Florenville Pty Ltd (Kathy and Wally Bell)” . The contract is subject “to financial approval” . It appears to have been signed on behalf of the purchasers by Mrs Bell and Mr Eldridge. 23    Mrs Bell said that before any arrangements were made for the purchase of the demountable house there was a discussion between herself, Mr Bell and Mr Eldridge in which Mr Eldridge said words to the effect: “I will give you [i.e. Mrs Bell] the portion of land the house is on as part of your inheritance” . 24    Mrs Bell said that there was not any discussion during this conversation about the dimensions or boundaries of the land which was to be transferred – she understood that the land would be a “portion of land that would be surrounding the house. There was no actual size discussed” : T22.45. When asked whether Mr Bell had said anything else about the arrangements for the demountable house, Mrs Bell responded: “Not at that time” . 25    Mrs Bell said that in late 1995 or early 1996 she and Mr Eldridge went to a meeting at the Commonwealth Bank to discuss a loan for purchase of the demountable house. A letter from the Bank shows that the meeting must have taken place in about early May 1996. At that meeting, Mrs Bell said that Mr Eldridge told the bank officer that he “intended to subdivide that piece of land and give me that piece of land when the house was paid off” : T24.20. 26    According to Mrs Bell’s evidence, this was the first occasion on which Mr Eldridge told her that the transfer of the Land was to take place at a certain time, i.e. when the subdivision was completed and when the loan from the Bank was repaid. 27    Mr Eldridge said that he first became aware of the proposal that Mr and Mrs Bell would bring a demountable house onto the Rossi Property when he was told by Mrs Eldridge. He says that the only discussion that he had with Mrs Bell about what would ultimately happen to the house occurred about two years after it was brought onto the Rossi Property, i.e. about 1997. He said that Mrs Bell then asked him what would happen “and I told her that I would make sure that the other members of the inheritance (sic), if it was to turn out that way, would not have access to her house” : T161.36. 28    Mr Eldridge emphatically denied that he had gone with Mrs Bell to the Commonwealth Bank to discuss the loan for the purchase of the house and that he had told the bank officer that he intended to transfer the Land to Mrs Bell when the loan was repaid and the subdivision carried out. He said that his wife had gone with Mrs Bell to the Bank to discuss the loan and that he had merely signed the loan documents when they were presented to him some time later. 29    There is in evidence a letter dated 21 May 1996 from the Bank addressed to Mrs Bell and Mr Eldridge (Ex D1). The letter notifies approval of a loan of $85,000 to Mr Eldridge and Mrs Bell for the purchase of the demountable house. The letter contains standard terms as to the conditions of the loan. However, it contains the following paragraphs:

“The security is to be a registered mortgage by Raymond Charles Eldridge over the property known as Lot 3, at RMB 120 Bungendore NSW and the title and all legal aspects connected with the loan are to be to the Bank’s satisfaction.

We understand it is your intention to sub-divide the proposed security property and for a portion of the land to be transferred to the name of Kathleen Ann Bell. The Bank agrees to release both Mr Raymond Charles Eldridge and the remaining portion of the land and to transfer this loan to Mrs Bell’s name solely upon completion of the sub-division subject to the Bank’s valuation confirming adequate support on normal lending margins will be available.”
30    Mr Eldridge said that he did not receive the Bank’s letter. It was sent to a mail box shared between Mr and Mrs Bell and Mr and Mrs Eldridge. 31    I do not think it inherently improbable that Mr Eldridge did not see the Bank’s letter. As between himself and Mr and Mrs Bell, the Bank loan was for the benefit of Mr and Mrs Bell and the liability for repayment would be theirs, although he was providing security by a mortgage over the Rossi Property. There is no dispute that Mr Eldridge, because of his work commitments and, probably, because of his disinclination for paperwork, left the arrangement of the loan to Mrs Bell. It is probable that Mrs Bell and Mrs Eldridge, who were the persons most concerned to improve the living conditions for Mrs Bell’s family, undertook the primary responsibility for ensuring that the necessary documentation for the purchase of the demountable house was completed. It is quite possible that Mrs Bell and Mrs Eldridge did not show the bank letter to Mr Eldridge. 32    Mr Eldridge agreed that he had discussed a possible subdivision of the Land with Mrs Bell, but said that that discussion occurred later than the time of the loan from the Bank, in about 1998. He said that Mrs Eldridge had told him in 1998 that Mrs Bell was concerned about what was going to happen to the house when Mr Eldridge died. He responded that he would see that his other children did not get access to Mrs Bell’s home. 33    Later in 1998, Mr Eldridge said, he had a discussion with Mrs Bell in which she “wanted to know that her house was on a secure piece of land that could be identifie d". He said: “I think we both realised that the house couldn’t be on my property. I wanted to make provision for later on in life to simplify the fact that the house could become hers” : T167.35-.43. Mr Eldridge said that there was no discussion about the boundaries of the land to be transferred to Mrs Bell but he told her to approach the Council and see what could be done about subdivision: T167.52. 34    Mr Eldridge was very definite that at this time he had had no plans to subdivide the Rossi Property during his lifetime and that he had agreed to Mrs Bell investigating the possibility of a subdivision of the land only to make it possible for her to have security of her own home when he died. The area of land which Mrs Bell now claims, 2.6 hectares, is the result of her enquiries with the Council and surveyors about possible subdivision, not of any express agreement with Mr Eldridge. 35    It is significant that Mrs Bell said in cross examination that up to 1996 she had had most of the discussions about what would happen to the house with her mother. She was asked:
“Q. In 1996 the extent of your conversation with your father about the house being placed on the land was words that he said to you to the effect, ‘I'll make sure the others will not get access to your house. Provided all goes well I will give you some land as part of your inheritance.’
A. He said that to me, yes.”
36    I am not satisfied that prior to purchase of the house in December 1995 or prior to the erection of the house on the Rossi Property in 1996 Mr Eldridge said to Mrs Bell that he would transfer to her the Land upon repayment of a loan from the Bank and upon completion of a subdivision. In particular, I am not satisfied that he made those statements to her at the time that a loan from Bank was being discussed with the bank officer. My reasons are as follows. 37    First, I accept Mr Eldridge as a generally more reliable witness. Mrs Bell’s evidence in some respects was vague and in some respects was not supported by the evidence. 38    For example, Mrs Bell insisted that she had been “ordered off” the Rossi Property and “banned” by Mr Eldridge from returning to the house, and had been denied access from January 2001 onwards. The evidence showed, however, that in fact she had decided, for reasons of her own, to move out of the house in January 2001 without first telling her parents. 39    When her solicitors informed Mr Eldridge’s solicitors by letter dated 30 October 2002 that Mrs Bell would be entering the Rossi Property in December or January for the purpose of removing the demountable house, there was no opposition or protest from Mr Eldridge. 40    Mrs Bell clearly feels a great deal of animosity towards her father. In my opinion, this animosity has coloured her evidence. 41    Second, the very vagueness of the “agreement” , as propounded by Mrs Bell, and the failure of the parties to take steps to implement a subdivision with any reasonable expedition strongly suggests that there was no firm agreement or understanding for a transfer of the Land reached at the time that arrangements were made for the purchase of the demountable house. 42    There was never any agreement about the dimensions or the boundaries of the land to be transferred. In itself, this looseness supports the evidence of Mr Eldridge that transferring the Land to Mrs Bell was something which he contemplated doing as part of the disposition of his children’s inheritance. 43    Third, Mrs Bell agrees that Mr Eldridge referred to the transfer of the Land in the context of his children’s inheritance. I have no doubt that from at least May 1996 onwards Mrs Bell was anxious that placing the house on Mr Eldridge’s land put her in a somewhat insecure position should her father die or change his attitude to permitting her and her family to continue to live on the Rossi Property rent free. I think it highly probable that Mrs Bell discussed this anxiety with her mother in early 1996 and that she, and possibly her mother, discussed with the Common-wealth Bank officer in May 1996 the subdivision and transfer of the Land into her own name. 44    However, I am not persuaded that Mr Eldridge himself attended the meeting at the Commonwealth Bank and made the statements attributed to him by Mrs Bell. The Bank’s letter of 26 May 1996 is, of course, addressed to Mr Eldridge as he was the person who was providing security for the loan. The letter does not, however, expressly refer to a meeting at the Bank with Mr Eldridge. The words “we understand it is your intention to subdivide …” can just as easily refer to an understanding derived from statements made to the Bank by Mrs Bell alone as to statements made by Mr Eldridge. The terms of the letter, in themselves, do not unequivocally support Mrs Bell’s evidence. 45    Further, both Mrs Bell and Mr Eldridge agree that it was left to Mrs Bell to arrange the loan from the Bank. Mr Eldridge appears to be generally reluctant to engage in paperwork. I think it highly unlikely that Mr Eldridge would have attended the Bank on two occasions, the first being to make a general enquiry as to the availability of a loan, the second being to execute the mortgage documents. I think it more likely that Mrs Bell and, possibly, Mrs Eldridge, attended the Bank on the first occasion to enquire about a loan and that Mr Eldridge attended only once, i.e. to execute the loan documents. 46    In summary, I am not satisfied on the balance of probabilities that Mr Eldridge agreed, prior to the purchase of the demountable house or at any time thereafter, that when Mr and Mrs Bell had repaid the loan for the purchase of the house Mr Eldridge would carry out a subdivision of the Rossi Property and would transfer to Mrs Bell absolutely title to any part of the Rossi Property. 47    In my opinion, the arrangement or understanding discussed between Mr Eldridge and Mr and Mrs Bell in 1995 and early 1996 was simply that Mr Eldridge would permit them to demolish the old house on the Rossi Property in which they had been living and to place there a demountable house. He would allow them to live on the property, rent free, as they had previously been doing. He would assist them by providing security for the bank loan for the purchase of the house. 48    I think it more probable than not that Mrs Bell and Mr Eldridge discussed both before and after the purchase of the house the security of Mrs Bell’s position, and that Mr Eldridge gave her an assurance that she would receive land sufficient to provide her with security of access to the house “as part of her inheritance” , meaning by that, as part of the arrangements he would make, in due course, for the disposition of his property amongst his family. These discussions amount to no more than an informal and loose family understanding, not intended to form a legally binding contract.

Representations, detrimental reliance and equitable relief

49    It follows from what I have said that Mrs Bell has not proved either the agreement or the representations upon which she relies. Any understanding which she and Mr Eldridge had about Mrs Bell’s inheritance was too loose and equivocal to create an estoppel founded either upon a common intention or upon express representations. 50    In any event, I am not satisfied that Mrs Bell relied on anything said by Mr Eldridge to the extent which the law would regard as sufficiently detrimental to give rise to an estoppel or other equitable relief. Certainly, Mr and Mrs Bell bought the demountable house when Mr Eldridge indicated that he would permit them to place it rent free on the Rossi Property. They would not have bought the house had Mr Eldridge refused that permission. However, Mrs Bell still owns the house. She may have it removed from the Rossi Property whenever she wishes. 51    Mr and Mrs Bell carried out some landscaping around the house. However, that work no doubt made their occupation of the house more pleasant and, in any event, they were living on the Rossi Property rent free. 52    It does not seem to me that Mrs Bell has sufficiently changed her position to her detriment in reliance upon whatever was said by Mr Eldridge to warrant the law imposing some equitable charge or constructive trust upon the Rossi Property, as Mrs Bell seeks.


Damages for conversion and detinue

53    Mrs Bell says that she was, in effect, forced from the house in January or June 2001 by the threats of Mr Eldridge and that she has subsequently felt unable to return there to live. She claims damages for the deprivation of the use of the house and for deprivation of the income she might otherwise have derived from letting it. 54    I do not accept Mrs Bell’s evidence that she was threatened by Mr Eldridge in early 2001 to the extent that she felt unable to continue living in the house. Mrs Bell decided to move out of house in January 2001 without first telling her parents. There is no evidence that this was the result of any prior specific incident of abuse or threat of violence from Mr Eldridge. 55    I do not accept Mrs Bell’s evidence that Mr Eldridge “ordered her off” the property in a telephone conversation in January 2001. The evidence shows that Mrs Bell was in the process of moving out of the house with the assistance of relatives when Mr Eldridge returned to the Rossi Property and saw what was happening. He had had no prior notice of Mrs Bell’s intended departure. Mr Eldridge went home and rang Mrs Bell. He told her – no doubt angrily – that she should take all of her belongings with her. This was not an order by Mr Eldridge to vacate the Rossi Property – Mrs Bell was already in the process of vacating. 56    I do not accept that Mrs Bell was so apprehensive of violence from Mr Eldridge that she felt unable to return to the house. She continued to work in the office of Florenville in close daily contact with Mr Eldridge until April 2002. There was ill feeling between them from time to time, but not such as to give Mrs Bell a reasonable basis for concluding that she would not be permitted to live in the house or to remove it from the Rossi Property at any time she wished. As I have noted, Mrs Bell’s solicitors informed Mr Eldridge’s solicitors in October 2002 that the house would be removed from the Rossi Property. That statement met with no opposition from Mr Eldridge. 57    Mrs Bell had formed another relationship by 2001. I am not satisfied that Mrs Bell’s departure from the house and her occupation of other premises from that time onwards was for any reason other than that she preferred to live elsewhere. One of her motives might have been that she did not like living in proximity to Mr Eldridge: that does not amount in law to Mr Eldridge forcing her to leave. 58    Mr Eldridge has never demanded that Mrs Bell surrender the keys of the house to him, nor has he ever prevented her from entering the house whenever she wished. She has not been deprived of the use of the house and could have removed it at any time from January 2001 onwards. 59    Mrs Bell’s claim for damages for conversion or detinue of the house fails on the facts.


Claims for wages, superannuation and other employment benefits

60    Mrs Bell’s claim for wages was based on an express contract to pay a stipulated hourly rate. She therefore had to prove the contract and to prove with reasonable precision what hours she had worked and when. 61    It was Mrs Bell’s responsibility as office administrator of Florenville to keep the company’s records, including its wage records. She apparently had not kept wage records relating to her own hours of work and remuneration. 62    Florenville does not dispute that Mrs Bell was paid, and was entitled to be paid, for her services, at least from December 1997 onwards. Prior to December 1997, Mrs Bell herself says in paragraph 106C of the Second Further Amended Statement of Claim that she received no income from Florenville “it having been so agreed in order to build up the business” . 63    Mrs Bell appears to concede in paragraph 106C of the Second Further Amended Statement of Claim that, at least up to December 1997, she was not entitled to be paid a wage for her services but would, hopefully, benefit from Florenville’s financial success by virtue of her shareholding in the company. 64    In any event, Mrs Bell’s claim for wages up to 23 September 1998 has been struck out as statute barred. 65    From January 1998 to June 2001, Mrs Bell received from Florenville a weekly cash payment of $100 together with a further amount of $250 per week, which was paid into the Commonwealth Bank in reduction of the loan for the purchase of the demountable house. It is not clear from the evidence what payments were received by Mrs Bell after June 2001 until she ceased employment. 66    I infer that the payments which Mrs Bell received from January 1998 onwards were made with the agreement of the other directors of Florenville. There was no other evidence of a contract. 67    Mrs Bell gave very unspecific evidence about the hours she worked over the years from 1992 to 2002. None of that evidence was supported by records. Her evidence can only have been a vague estimate, at best. 68    The other directors of Florenville and Mr Eldridge were not called to give evidence rebutting Mrs Bell’s assertions as to her employment entitlements. This is not surprising. The evidence suggests that the other directors and Mr Eldridge were not regularly working in the office with Mrs Bell. Mrs Bell was the person who was responsible for office management and for keeping wage records. It would have been unlikely that the other directors and Mr Eldridge could have given helpful evidence from their own observations of the hours which Mrs Bell worked in the office. It is improbable that they could have given evidence of the hours which she says she worked overtime and at home. 69    For that reason, Florenville took the position that it was for Mrs Bell to prove her claim to the Court’s satisfaction. Because of the vagueness and generality of Mrs Bell’s evidence as to the hours which she worked, and because of Mrs Bell’s tendency to make exaggerated assertions unsupported by the evidence – see paragraphs [38] to [40] and paragraphs [53] to [57] – I am not prepared to make a finding that the amounts received by Mrs Bell from Florenville from September 1998 onwards were not commensurate with the hours which she worked and the rates of remuneration to which she claims to be entitled. Consequently, I cannot make any finding as to what amounts Mrs Bell may be entitled to for superannuation or holiday pay. The “other employment benefits” referred to in Mrs Bell’s Second Further Amended Statement of Claim have not been particularised. 70    It was Mrs Bell’s obligation to prove her entitlement to further remuneration from Florenville to the Court’s satisfaction and with sufficient precision to enable the Court to make a supportable finding of fact. This she has not done. In these circumstances, Mrs Bell’s claim against Florenville must be dismissed.


Orders

71    There will be judgment for the Defendants on the Plaintiff’s Second Further Amended Statement of Claim. 72    Costs would normally follow the event. I direct that the parties provide any submissions as to costs in writing, not exceeding one page, within seven days of the date of judgment.
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