Bestry v Western Australian Planning Commission [No 2]
[2025] WASC 213
•30 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BESTRY -v- WESTERN AUSTRALIAN PLANNING COMMISSION [No 2] [2025] WASC 213
CORAM: HOWARD J
HEARD: 26 SEPTEMBER 2024 AND 24 FEBRUARY 2025
DELIVERED : 30 MAY 2025
FILE NO/S: CIV 1782 of 2020
BETWEEN: ROY ALFRED GORDON BESTRY (by his next friend, Alan John Bestry)
Plaintiff
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Practice and procedure - Application for summary judgment by defendants - Whether the plaintiff's case could succeed at trial - Whether there is a real question which should be left to trial - Construction of 1965 Deed and an option provided for therein - Finding that no real question to be tried - Application for summary judgment granted
Plaintiff's application to restrain SSO from acting for defendants - Application brought on two bases - First basis that SSO acted for and continues to act for the plaintiff found not to be maintainable - Second basis that SSO is not disinterested is fanciful
Legislation:
Nil
Result:
Application for summary judgment granted
Application to restrain the SSO from acting refused
Representation:
Counsel:
| Plaintiff | : | C P Shannahan SC & A C Willinge 26 September 2024 |
| First Defendant | : | K M Pettit SC |
| Second Defendant | : | K M Pettit SC |
Solicitors:
| Plaintiff | : | Rowley Legal |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | State Solicitor's Office |
Cases referred to in decision(s):
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560
Pisano v South Metropolitan Health Service [2023] WASCA 80
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Wright v Lemon [2024] WASCA 19
HOWARD J:
These reasons concern two applications; namely:
1.the State defendants' application for summary judgment, or to strike out the plaintiff's Substituted Statement of Claim filed 29 September 2023 and as proposed to be amended by his Minute of Amended Substituted Statement of Claim filed 29 April 2024; and
2.the plaintiff's application to restrain the State defendants from being represented by the State Solicitor's Office.
From here I will refer to the plaintiff as Mr Bestry and to the defendants as the State defendants or the State.
The applications
On 5 January 2024, the State defendants filed a chamber summons for summary judgment pursuant to O 16 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC) or alternatively for orders striking out the plaintiff's substituted statement of claim pursuant to O 20 r 19(1).
The chamber summons principally sought that:
1.Judgment be entered for the State defendants pursuant to O 16 r 1(1)(a) of the Rules of the Supreme Court 1971, and the action be dismissed, on the grounds that:
a.the Defendant has a good defence on the merits, and
b.the action should be disposed of summarily.
By agreement, the State defendants' application is taken to be in relation to Mr Bestry's claims as pleaded in the Minute of Amended Substituted Statement of Claim of 29 April 2024 (SOC), although the Minute post‑dates the State defendants' application.
By an application filed 29 February 2024, Mr Bestry seeks orders restraining the State Solicitor's Office of Western Australia (SSO) from continuing to represent the two State defendants in these proceedings (restraint application).
The evidence
In their application, the State defendants rely upon affidavits of one of their solicitors, Carolyn Elizabeth Foster:
1.made and filed 5 January 2024 (first Foster affidavit);
2.made and filed 15 April 2024 (second Foster affidavit); and
3.made and filed 13 May 2024 (third Foster affidavit).
The State also relies on an affidavit of Kate Louise Rampellini made and filed 13 December 2024 (Rampellini affidavit). Ms Rampellini is a cartographer employed by the Department of Planning Lands & Heritage.
Ms Rampellini's affidavit was filed subsequently to the first hearing of the matter and the parties made further written submissions about the effect of her evidence.
The evidence read by Mr Bestry does not neatly divide between the two applications. I have set out all of the evidence he relies on in the two applications, namely:
1.his affidavit made 24 January 2019 and filed 14 February 2019 in CIV 1166 of 2019 (Mr Bestry's CIV 1166 affidavit);
2.an affidavit of his solicitor, Linda Elizabeth Rowley, made and filed 16 May 2019 in CIV 1166 of 2019 (Rowley CIV 1166 affidavit);
3.his affidavit made 12 April 2022 and filed 14 April 2022 in these proceedings (Mr Bestry's first affidavit);
4.his affidavit made 5 September 2023 and filed 29 February 2024 in these proceedings (Mr Bestry's second affidavit);
5.Ms Rowley's affidavit made 28 February 2024 and filed 29 February 2024 in these proceedings (first Rowley affidavit);
6.Ms Rowley's affidavit made and filed 29 April 2024 in these proceedings (second Rowley affidavit);
7.Ms Rowley's affidavit made and filed 17 May 2024 in these proceedings (third Rowley affidavit);
8.Ms Rowley's affidavit made and filed 26 August 2024 in these proceedings (fourth Rowley affidavit); and
9.Ms Rowley's affidavit made and filed 20 December 2024 in these proceedings (fifth Rowley affidavit).[1]
[1] As will be set out, Ms Rowley's second and third affidavits were made in support of Mr Bestry's restraint application.
Mr Bestry's case: overview
With respect, Mr Bestry's case as pleaded is convoluted. As I understand his primary case in contract, Mr Bestry:
1.relies on a written agreement (defined below as the 1965 Deed);
2.asserts and relies on, effectively, an option in cl 7(i) of the 1965 Deed by which certain land sold to the State must be offered to Mrs Bestry for her re‑acquisition;
3.says the option to re‑acquire is triggered if the State no longer requires land for a (defined) Designated Purpose;[2]
4.says that since 7 October 2011, no part of certain land 'could be required' for the Designated Purpose;[3] and
5.on those premises, claims the State was contractually obliged to offer to Mrs Bestry that certain land for purchase, which it has failed to do.
[2] 'Designated Purpose' is defined in the SOC [45], [45A].
[3] SOC [78].
For the above contract case, Mr Bestry relies upon the express provisions of the 1965 Deed and then, additionally or in the alternative, relies on a Construed Term and Implied Terms (as both are defined in the SOC).
Mr Bestry also pleads additional, alternative, cases in:
1.estoppel by conduct;[4]
2.proprietary interest;[5]
3.proprietal estoppel;[6]
4.a resulting or constructive trust;[7]
5.unjust enrichment;[8] and
6.unconscionable conduct.[9]
[4] Section H to the SOC.
[5] Section I to the SOC.
[6] Section J to the SOC.
[7] Section K to the SOC.
[8] Section L to the SOC.
[9] Section M to the SOC.
These additional cases will be returned to below.
The facts and pleadings relevant to Mr Bestry's contract case
Unless otherwise indicated below, the factual matters pleaded, or set out, are common ground or not seriously in dispute.
The first defendant is a body corporate established under s 7 of the Planning and Development Act 2005 (WA).[10] When the relevant facts occurred, the first defendant was called the Metropolitan Region Planning Authority (MRPA).[11]
[10] It was first established under the now repealed Western Australian Planning Commission Act 1985 (WA) s 4 (WAPC Act): SOC [2].
[11] The MRPA was constituted by the now repealed Metropolitan Region Town Planning Scheme Act 1959 (WA): SOC [3].
The second defendant is the Crown in the right of the State of Western Australia[12] and the MRPA was at all material times an agent of the State.[13]
The land before the 1965 Deed
[12] SOC [6].
[13] SOC [4], [5].
On 24 September 1926, John Bestry (Mr Bestry's father) purchased Lots 95 and 96 on Plan 4595, which was land immediately north of Balcatta Road in this State (Bestry Land).[14] (It is noted here that the land ultimately sold by Mrs Bestry by the 1965 Deed (as defined below) was a lesser parcel than the whole of the Bestry Land).
[14] SOC [9].
Following his death, the Bestry Land passed to his widow, Anna Marie Bestry (Mrs Bestry).[15] On 22 February 1977, Mrs Bestry died leaving four surviving children including the plaintiff, Mr Bestry.[16]
1962 to the 1965 Deed
[15] SOC [10].
[16] SOC [11].
On 2 April 1962, Mrs Bestry made an application to the Town Planning Board of Western Australia (TPB) to subdivide the Bestry Land.[17]
[17] SOC [14].
On 21 May 1964, the TPB refused, by letter, the request on the basis that the Bestry Land was affected by major highway proposals.[18]
[18] SOC [14]. The letter is 'CEF-17' at page 80 of the first Foster affidavit.
I interrupt the chronology at this point to identify the relevant highway proposals.
Mr Bestry pleads that Stephenson Avenue:
1.assumedly before the 1965 Deed, was planned to proceed from Mount Claremont to Hamersley and was identified as an 'Important Regional Road';[19]
2.in about 1960, was agreed should become a 'controlled access road';[20]
3.in about 1961, became known as the Stephenson Highway and was designated a 'controlled access road';[21]
4.from 1961, after its designation, was referred to as any of Stephenson Avenue, Highway or Freeway;[22] and
5.assumedly before the 1965 Deed, was to intersect in an interchange with the North Perimeter Highway or the North Perimeter Freeway.[23]
[19] SOC [12.1].
[20] SOC [12.2].
[21] SOC [12.3].
[22] SOC [12.4].
[23] SOC [12.5].
Attachment 1 to the SOC includes a map (marked file number 903/62), from about 1962, which showed:
1.at its south-eastern end the road over the Narrows part of the Swan River which travelled north, then north-west and intersected with Stephenson Avenue at about the point marked 'X'; and
2.to the south-western side, a road from Nedlands which travelled north, then north-east and then north to intersect also at the point marked 'X', before continuing further north to intersect with the North Perimeter Highway. That road was named Stephenson Avenue.
It was common ground that the point marked 'X' on the map was at or about Osborne Park.
As I understand it, Mr Bestry pleads that map (Attachment 1 to the SOC) was approved by the Governor and Executive Council on 7 August 1963.[24]
[24] Particular A to SOC [13].
The map in Attachment 1 to the SOC (and marked file number 903/62) shows, as I understand Mr Bestry's pleading, that Stephenson Avenue was to go from Swanbourne (to the north of Nedlands on the plan) to Hamersley having passed through the north perimeter interchange.
Ms Rampellini for the State defendants has produced the Metropolitan Region Scheme map effective as at 30 October 1963 on which she superimposed both Lot 95 and Lot 4; that map also showed land then reserved for 'Controlled Access Highways' (marked in red).[25] That map showed some of each of Lot 95 and Lot 4 as not being subject to the Controlled Access Highways reserve.
[25] 'KLR-2' and [24], [25] of Ms Rampellini's affidavit.
On 3 August 1964, Mrs Bestry, by letter, requested the TPB purchase the whole of Lot 95.[26]
[26] SOC [16]. The letter is 'CEF-18' at page 81 of the first Foster affidavit.
On 13 August 1964, the Secretary of the Metropolitan Region Planning Authority (MRPA) wrote to the Under Secretary for Works, Public Works Department and stated:
Mrs Bestry has requested the Authority to purchase the land required by the Main Roads Department for the Stephenson Freeway. The land required is outlined in green on the enclosed sketch.
Will you please forward a valuation as soon as possible.
If the Authority decides that the land should be purchased the funds will be provided by the Main Roads Department under the procedure discussed with Mr. Jarvis.[27]
It is not pleaded that this letter was sent, or copied, to Mrs Bestry.
[27] SOC [17]. The letter is part of 'LER-1' of the Rowley CIV 1166 affidavit at page 44.
By letter dated 13 August 1964, the Secretary of the MRPA wrote to Mrs Bestry and said:
Your letter of 3rd August is acknowledged.
I have requested the Land Resumption Officer to value the land required for the Stephenson Freeway.
Present indications are that only the land required for the Freeway would be acquired.
As soon as the valuation is to hand, I will submit your proposal to the Authority and advise you of its decision.[28]
[28] SOC [18]. The letter is part of the Rowley CIV 1166 affidavit 'LER-1' at page 50. The letter is also 'CEF‑19' at page 82 of the first Foster affidavit.
Mr Bestry points particularly to the statement concerning 'land required for the Stephenson Freeway'.
On 11 January 1965, the Acting Under Secretary for Works, Public Works Department, wrote to Mrs Bestry and said that:
1.the MRPA had authorised the purchase of approximately 90 acres of the land (being part of Lot 95); and
2.approval has been given for advance payment of $50,000 on the following conditions:
(a)that the balance payable was to be determined by negotiation and, failing this, by arbitration in accordance with the Arbitration Act 1895, or by some other method mutually acceptable to the parties; and
(b)the unpaid balance was not to bear interest.[29]
[29] SOC [24]. The letter is annexed to Mr Bestry's second affidavit as 'RAGB-4' at page 15. The letter also appears as 'CEF-21' at page 83 of the first Foster affidavit.
On about 15 January 1965, a Draft Sale Agreement was prepared by the Crown Law Department (Crown Law or CLD) and forwarded to Mrs Bestry under cover of a letter of that date. The letter was in evidence.[30] The subject of the letter was 'Purchase of land for Stephenson Ave'.
[30] SOC [26]. The letter was 'RAGB-6' of Mr Bestry's first affidavit. The letter is also 'CEF-21' at page 84 of the first Foster affidavit.
The State defendants say that the enclosed draft did not contain an option to re‑purchase land.[31] In light of how Mr Bestry puts his case, I have taken that to be the fact.
[31] State defendants' outline of submissions filed 15 April 2024 [13].
Significantly, the plaintiff then pleads:
27.On 20 January 1965 the Plaintiff, on behalf of his mother, contacted the CLD by telephone and requested a clause be put into any sale agreement for the Bestry Land, or part thereof, to the effect that the "Vendor to have first option to re-purchase property if no longer required by authority @ valuation not exceeding purchase price" (where the reference to "authority" was a reference to the MRPA, the reference to the "Vendor" was to Mrs Bestry, the benefit of the option was to go to Mrs Bestry and her children, and "property" referred to any land no longer required for the Stephenson Freeway and the Plaintiff repeats [18]), ('Plaintiff's Request').
PARTICULARS OF PLAINTIFF'S REQUEST
The words pleaded are recorded in a contemporaneous file note prepared by the CLD dated 20 January 1965.[32] (emphasis in the original)
[32] SOC [27].
I have used that defined term of 'Plaintiff's Request' in these reasons.
The Crown Law file note dated 20 January 1965 was in evidence,[33] and was as follows:
Mr Bestry called on behalf of his mother (the Vendor).
1.He does not want possession of the property to pass from his mother to the Authority until the final payment is made.
2.Valuation of the property to be set as value at 1/2/65 or date of contract.
3.Vendor to have first option to re-purchase property if no longer required by Authority a valuation not exceeding purchase price.
Rang Mr Jarvis re these three matters. He agreed to the first too [sic] and after consultation with Mr Paruch of the Main Roads Department who concurred it was agreed to the inclusion of the third item. Mr Swan of the M.R.P.A. was unavailable so this clause is subject to approval by the M.R.P.A.
[33] The Note was 'RAGB-9' at page 24 of Mr Bestry's second affidavit and reproduced in the third Rowley affidavit as part of 'LER-2' at page 27.
As will be seen below, the plaintiff attaches great significance to the Plaintiff's Request being made to Crown Law.
Following, and as a result of, the Plaintiff's Request, a further draft sale agreement was prepared and provided 'by means unknown' to Mrs Bestry which contained an option to purchase.[34] As will be seen, Mr Bestry pleads, it appears, that Crown Law presented that option to Mrs Bestry as giving effect to the Plaintiff's Request.[35] The SOC defines the presentation of the option by Crown Law as the 'CLD Representation'.
[34] SOC [28]. The State defendants accept the inference may be drawn that the inclusion of what became cl 7(i) in the 1965 Deed was as a result of the Plaintiff's request: State defendants' outline of submissions filed 15 April 2024 [16].
[35] SOC [31].
By a deed, executed on 26 January 1965, Mrs Bestry agreed to sell part of Lot 95 (1965 Deed).[36]
[36] SOC [42], [44]. The 1965 Deed is 'LER-1' at page 7 of the first Rowley affidavit.
From the above review, I think it is plain that at the time that the 1965 Deed was entered into, it was planned that:
1.a road, which is now known as the Mitchell Freeway, would travel from the Narrows to Osborne Park;
2.there would be road called Stephenson Avenue from Nedlands/Swanbourne going north to Hamersley, which would travel over the Bestry land just north of Balcatta Road; and
3.the road travelling north from the Narrows would intersect with the proposed Stephenson Avenue at Osborne Park and would continue north as I have just described.
The recitals to the 1965 Deed defined:
1.the 'subject land', as:
that portion of the said land as is delineated and bordered green on the map in the Schedule hereto;[37]
2.the 'said land', as:
ALL THAT piece of land being portion of Swan Location K and being Lot 96 and part of Lot 95 on plan 4595 and being the whole of the land comprised in Certificate of Title Volume 939 Folio 17 (emphasis in the original).[38]
[37] Recital (ii) to the 1965 Deed; 'LER-2] at page 7 of the first Rowley affidavit.
[38] Recital (i) to the 1965 Deed; 'LER-2' at page 7 of the first Rowley affidavit.
Although not expressly pleaded in the SOC, cl 1 of the 1965 Deed provided that:
The Vendor will sell to the Authority which will purchase from the Vendor the subject land free from all encumbrances and easements and upon and subject to the terms and conditions hereinafter contained. (emphasis added)
While the 1965 Deed referred to 'the subject land' to describe the land agreed to be sold, the SOC used 'Lot 4' to refer to that same parcel of land.
I do not understand there to be any challenge on the part of Mr Bestry to the State defendants' evidence to the effect that for the subject land:
1.the purchase price was agreed by a 1966 deed;
2.was paid; and
3.the estate in fee simple of the subject land was transferred from Mrs Bestry to the Crown on 9 June 1967.[39]
The plaintiff's 'Designated Purpose'
[39] State defendants' outline of submissions filed 15 April 2024 [20] summarising the evidence in 'CEF-2' and 'CEF-3C' of the first Foster affidavit. See the first Foster affidavit [7], [9], [12].
At its heart, Mr Bestry's case is that on 7 October 2011 certain land sold by the 1965 Deed could no longer be required by the State for the Designated Purpose and had to be offered to him (and his siblings) for re‑acquisition pursuant to cl 7(i) of the 1965 Deed.
The Designated Purpose is pleaded in the SOC as follows:
45.… the Schedule [to the 1965 Deed] (which appears at ATTACHMENT 3 to the Statement of Claim) was constituted by a diagram prepared by the MRD, being MRD TB PLAN 2224‑C (which is a further and subsequent iteration of PLAN TB 2224B at ATTACHMENT 2 to the Statement of Claim), which identifies the purpose for which Lot 4 was acquired by the MRPA by the descriptions:
45.1 "Land required from Lot Pt 95 for C.A. ROADS" (where "C.A." meant controlled access, see lower left of the Schedule at ATTACHMENT 3 to the Statement of Claim), and
45.2 "STEPHENSON & NORTH PERIMETER FREEWAYS LAND REQUIRED FROM LOT PT. 95 - BALCATTA RD" (see bottom right of the Schedule at ATTACHMENT 3 to the Statement of Claim),
('Designated Purpose'). [40] (emphasis in the original)
[40] SOC [45].
The Designated Purpose, pleaded in SOC [45] quoted above, is further pleaded by the plaintiff to be as follows:
45A. The Designated Purpose related only to the public works associated with, and integral to, the Stephenson Freeway (including its intersection with the North Perimeter Freeway) and the North Perimeter Freeway (later renamed the Reid Highway); and did not relate to public works associated with, or integral to, the Mitchell Freeway which was planned by the Defendants or their predecessors as a separate infrastructure project.[41]
[41] SOC [45A].
As will be seen, Mr Bestry places great significance on the two matters pleaded in SOC [45.1] and [45.2] and which are apparent on the face of the plan which is the Schedule to the 1965 Deed.
The plaintiff pleads that the 1965 Deed conferred on the plaintiff the right to purchase back any of the land sold by Mrs Bestry under that deed that was no longer required for the Designated Purpose.[42]
[42] SOC [46], [48].
I note that the SOC does not identify or particularise what, if any, part of the land sold by the 1965 Deed is no longer, on Mr Bestry's case, required for the Designated Purpose.
Clause 7 of the 1965 Deed
The plaintiff pleads by SOC [48] that:
Clause 7 by its terms and effect obliged, and continues to oblige, the MRPA (and its successors, including the First Defendant) and the Second Defendant to give to Mrs Bestry, or any one of her surviving children including the Plaintiff (as the case required, or requires), the notice and the right to purchase back any part of the land sold by Mrs Bestry to the MRPA pursuant to the 1965 Deed not required for the Designated Purpose.
Clause 7 in the 1965 Deed is as follows:
7(i) If the subject land or any part thereof is not required for use by the Authority or the Crown then the Authority in consideration of the provisions hereinbefore contained shall give to the Vendor or the Vendor's children as the case may require written notice that it no longer requires the subject land or part thereof and in that notice to give to the Vendor or the Vendor's children as the case may require an option to purchase the subject land or the portion thereof no longer required at such price as is paid by the Authority to the Vendor pursuant to clause 3 hereof or such sum of money as bears to the overall purchase price the same proportion as the area of the land comprised in the portion no longer required bears to the total area of the subject land and which price shall be stated in that notice;
7(ii) The Vendor or the Vendor's children as the case may require shall give to the Authority written notice exercising that option to purchase within forty-five (45) days of receipt of the notice referred to in sub-clause (i) of this clause;
7(iii) The Vendor or the Vendor's children as the case may require shall pay to the Authority in full within seven (7) days of the giving of the notice referred to in sub-clause (ii) of this clause the option price as stated in the notice referred to in sub-clause (i) of this clause;
7(iv) Notwithstanding anything to the contrary contained herein this option to purchase shall be personal to the Vendor or in the event of the Vendor being deceased to such of the Vendor's children jointly as shall be surviving at the time of giving the notice referred to in subclause (i) of this clause;
7(v)In this clause time shall be of the essence in all respects of the contract.[43] (emphasis added)
Post the 1965 Deed to 1980
[43] Clause 7 of the 1965 Deed; 'LER-2' at pages 8 - 9 of the first Rowley affidavit.
A State letter dated 16 June 1970 recorded considerations as to the 'Naming of Freeways'.[44] The letter recorded that the name 'Mitchell Freeway' had been used between the Narrows and 'its junction with the Stephenson Freeway at Osborne Park'. It proposed (which came to pass) that the name 'Mitchell Freeway' 'should extend northwards beyond Osborne Park': that is, from the Osborne Park junction of 'Stephenson Freeway', the freeway should be named the 'Mitchell Freeway' (as it was between the Narrows and the Osborne Park junction).
[44] 'CEF-32' at page 36 of the second Foster affidavit.
Ms Rampellini has produced a plan from a Metropolitan Region Scheme map effective 16 February 1968 (i.e. post the sale by the 1965 Deed) on which she has overlaid the boundaries of Lot 95 and Lot 4.[45] That map shows all of Lot 4 being reserved for Controlled Access Highways.
[45] 'KLR-4' and [27], [28] of the Rampellini affidavit.
That, as per the Rampellini affidavit, remained the case up until the map she produced, which was effective at 9 August 1973, again from a Metropolitan Region Scheme plan, which showed almost all of Lot 4 as being the subject of reserve for Controlled Access Highways.[46]
[46] 'KLR-10' and [36], [37] of the Rampellini affidavit.
Ms Rampellini prepared a plan from a Metropolitan Region Scheme map effective 1 April 1980 on which she overlaid Lot 4.[47] That map ('KLR‑12') showed almost all of Lot 4 as being reserved for Controlled Access Highways.
[47] 'KLR-12' and [40], [41] of the Rampellini affidavit.
As per Ms Rampellini's evidence, that remained the case until 2008. As will be seen, while the remaining land after the two re‑acquisitions remains reserved for a road, Lot 4 was integrated into a new Lot 500 in June 2008.
Re-acquisition of land by Bestrys
Two notices are pleaded as having been given to the plaintiff offering portions of Lot 4 or the subject land for re-acquisition since the 1965 Deed.[48] Following the giving of such notices, the plaintiff and his siblings purchased the land being offered to them.[49]
[48] The first notice was given in about September 1979: SOC [53]. The second notice was given initially in about August 1988: SOC [57].
[49] The first purchase occurred in about February 1984: SOC [56]. The second transfer occurred in about October 1991: SOC [58].
More particularly, since 1965, the plaintiff pleads that:
1.in September 1979, land was offered to him for purchase;[50]
2.he and his sister purchased land pursuant to that offer in February 1984;[51]
3.in the period from August 1988 to November or December 1990, a second portion of land was offered to the plaintiff and his siblings;[52] and
4.he and his surviving siblings became the owners of that second portion after accepting that offer.[53]
[50] SOC [53] - [54].
[51] SOC [56].
[52] SOC [57] - [58].
[53] SOC [58].
The heading above SOC [53] is 'H-1 First Return of Land Pursuant To The 1965 Deed' from which it may be taken that Mr Bestry asserts that the offer in about September 1979 was made pursuant to cl 7 of the 1965 Deed. So much appears to be confirmed by SOC [52].[54]
[54] There was a suggestion by Mr Bestry's senior counsel in the first hearing that the returns may not have been consistent with cl 7(i) of the 1965 Deed: ts 39. But materially, that submission was not maintained: ts 63.
The written agreement for the First Return was in evidence.[55]
[55] 'CEF-5' of the first Foster affidavit; see first Foster affidavit [14].
The Recitals to that agreement dated 10 February 1984 recorded that the 1965 Deed included:
… inter alia a provision that if any portion of the land sold was no longer required by the Crown the children of the said ANNA MARIE BESTRY would have the option to purchase the same as set forth therein.[56] (emphasis in the original)
[56] 'CEF-5' at page 30 of the first Foster affidavit.
That agreement described or defined the land being sold back as 'surplus land'. The first Foster affidavit describes that surplus land as being in the north‑east corner of the subject land.
The heading above SOC [57] is 'H-2 Second Return of Land Pursuant To The 1965 Deed', from which it may be inferred that Mr Bestry asserts that the offer was made pursuant to cl 7 of the 1965 Deed. So much appears to be confirmed by SOC [52].[57]
[57] There was a suggestion by Mr Bestry's senior counsel in the first hearing that the returns may not have been consistent with cl 7(i) of the 1965 Deed: ts 39. But materially, that submission was not maintained: ts 63.
On 8 August 1988, the Main Roads Department wrote to Mr Bestry:[58]
Reference is made to your conversation with Mr Preshaw from this Department wherein you enquired if any of the above land has been defined as being surplus to our road requirements.
It is anticipated that a portion of Lot 4 at the north/east corner of the Mitchell Freeway and the North Perimeter Highway will become surplus to the requirements for those roads. Finalisation of any disposal action will however not occur until some considerable time in the future.
…
It is therefore expected that it will be at least twelve to eighteen months before the Department is able to offer any surplus land back to the children of Mrs A M Bestry in accordance with the conditions specified in the Contract of Sale entered into between the Metropolitan Region Planning Authority and Mrs A M Bestry.[59]
[58] 'CEF-6A' of the first Foster affidavit; see first Foster affidavit [15].
[59] 'CEF-6A' at page 36 of the first Foster affidavit.
On 22 March 1989, the Main Roads Department wrote to Mr Bestry.[60] The letter said, relevantly:
With reference to your recent telephone conversation with Mr D Fowles, please find enclosed a copy of MRD Drawing 7821-81-3 showing the approximate portion of land in Lot 4 that should become surplus to the Mitchell Freeway/North Perimeter Highway road requirements.
…
At this stage, it appears doubtful if any surplus land will be able to be offered back to the children of Mrs A Bestry until late 1989 early 1990.[61]
[60] 'CEF-6B' of the first Foster affidavit; see first Foster affidavit [16].
[61] 'CEF-6B' at page 37 of the first Foster affidavit. The attached drawing to the 22 March 1989 letter was 'CEF‑6C' at page 38 of the first Foster affidavit.
On an unspecified date in 1990, the Commissioner of Main Roads provided a written Option to Purchase to Mr Bestry and his siblings.[62] The Option to Purchase referred to:
…the option to purchase granted to you pursuant to Clause 7 of the agreement dated 26 January 1965 ...
[62] 'CEF-6D' of the first Foster affidavit; see first Foster affidavit [18].
Clause 1 of that Option to Purchase recorded that:
The said land is no longer required by the Crown or by any instrumentality of the Crown … .[63]
[63] 'CEF-6D' at page 39 of the first Foster affidavit.
It is pleaded by Mr Bestry that the Option to Purchase was accepted, and the land was transferred to him and his surviving siblings on 29 October 1991.[64] This is not disputed by the State.[65] Ms Foster refers to the land purchased in this way as land in the north‑west corner of the subject land.
1991 onwards
[64] SOC [58].
[65] First Foster affidavit [18].
References to Lot 4 or the 'subject land' from here are to the position after 1991 and should be understood as referring to the balance of Lot 4 or the subject land after the two re‑acquisitions outlined above.[66] Lot 4 or the subject land remained owned by the State in freehold.[67]
[66] Lot 4 or the subject land after 1991 is depicted in the diagram 'CEF-3E' at page 28 of the first Foster affidavit; see first Foster affidavit [9].
[67] First Foster affidavit [19] and the certificate of title was in evidence as 'CEF-7' at page 42 of the first Foster affidavit.
On 10 June 2008, Lot 4 was re‑vested in the Crown and incorporated into a new Lot 500 on Deposited Plan 59906 (Lot 500).[68] It appears Lot 500 also included land which had not been a part of Lot 4 or the subject land.
[68] First Foster affidavit [21] - [22]: the Revestment Order is 'CEF-8A' and the Certificate of Title for Lot 500 is 'CEF-8B' at page 52 of the first Foster affidavit.
Also on 10 June 2008, Lot 500 was dedicated as a road pursuant to s 56 of the Land Administration Act 1997 (WA).[69]
[69] The registered Road Dedication is 'CEF-9' at page 54 of the first Foster affidavit.
As pleaded, 7 October 2011 is a most important date to Mr Bestry's claims.
The plaintiff pleads that since 7 October 2011, no part of Lot 4 could be required for the Designated Purpose:
78.… because those portions of the Stephenson Freeway from Woodlands to the formerly planned junction at Osborne Park previously reserved for that purpose were de-reserved.
PARTICULARS OF REQUIREMENT
By MRS Amendment 1173/57 gazetted 7 October 2011 and shown on Plan 3.2321/1, that part of the Stephenson Freeway from Woodlands to the formerly planned junction at Osborne Park with the Yanchep Highway was deleted as a Primary Regional Road reservation from the MRS and rezoned Central City Area Zone under the MRS thereby terminating the Stephenson Freeway at Swanbourne.
79. Further, and in the alternative, despite it's [sic] knowledge that no part of Lot 4 was to be used, and was no longer required, for the Designated Purpose, the First Defendant, as an agent of the Second Defendant, in breach of clause 7 of the 1965 Deed and/or the construed (see [49]-[50] herein) and/or implied terms (see [51.1]-[51.4] herein), other than in respect of the First and Second Returns of Land, failed to give Mrs Bestry, and/or any of her surviving children (as the case required, or requires), including the Plaintiff, either:
79.1 The notice required by clause 7;
79.2 The option to re-purchase any part of Lot 4 not required for the Designated Purpose; and/or
79.3 The information necessary to enable Mrs Bestry and/or her children to consider, enforce or test their rights arising under the 1965 Deed.
80. Further, and in the alternative, at no time, other than in relation to the First and Second Return of Land (at [53]-[58] herein), or in responding to freedom of information requests by the Plaintiff, or in pre-action discovery or discovery in these proceedings, have the Defendants provided information to the Plaintiff as required by the matters pleaded at [49], [50.2], [50.3], and [51.1]-[51.4].[70]
[70] SOC [78] - [80].
The State says that no part of what is pleaded in SOC [78] or its particulars occurred on Lot 4 or the subject land. Without objection, the State defendants described that as occurring four kilometres to the south west of the subject.[71]
[71] State defendants' outline of submissions filed 15 April 2024 [6]; ts 96, 97, 168.
There was some suggestion made in Mr Bestry's oral submissions that there was surplus land which should be offered for re‑acquisition because, although part of a road reserve, the pieces of land were being used not for a road but for incompatible purposes such as bike and pedestrian paths.[72]
[72] ts 53, 93.
However, that is not the case which is pleaded. As accepted by Mr Bestry,[73] I have limited my consideration on the State's application to the SOC as pleaded, which turns on the plea about 7 October 2011.
[73] ts 161.
In his responsive submissions[74] Mr Bestry identified what he says are various 'factual issues between the parties'.[75] As will be seen, none of these go to any change before and after 7 October 2011 and appear not to be material to the State's application (or, for that matter, Mr Bestry's case as pleaded).
Construed and Implied Terms
[74] Mr Bestry's responsive submissions filed 20 December 2024.
[75] See, for example, Mr Bestry's responsive submissions filed 20 December 2024 [34] - [37].
In addition to relying on the express provisions of cl 7 of the 1965 Deed, Mr Bestry pleads and relies upon a Construed Term and Implied Terms.
The Construed Term is said to arise on a proper construction of the 1965 Deed; that is:
… The parties, their successors and the State agree to do all things reasonably necessary to afford Mrs Bestry and her surviving children the benefit of clause 7 of the 1965 Deed. …
PARTICULARS OF CONSTRUED TERMS
The Construed Term is to be construed on the proper construction of the express terms of the 1965 Deed.[76]
[76] SOC [49].
The plaintiff then pleads that certain continuing obligations were the result of the Construed Term.[77]
[77] SOC [50].
The plaintiff, additionally or in the alternative, then pleads Implied Terms as follows:
51In the alternative, by reason that the Designated Purpose was within the knowledge, and subject to the decision-making, of the MRPA, and its successors and as agent of the Second Defendant, there are additional terms to be implied in the 1965 Deed:
51.1 The parties, and their successors, and the State agree to do all things reasonably necessary to afford Mrs Bestry and her surviving children the benefit of clause 7 of the 1965 Deed;
51.2 The MRPA, and its successors, and the State will not use Lot 4 or any part of it for any use, other than the Stephenson and North Perimeter Freeways, without notice to Mrs Bestry, or her children, as the case requires;
51.3 The MRPA, and its successors, and the State will act in good faith to promptly determine whether any part of Lot 4 is not required for the Stephenson and North Perimeter Freeways; and
51.4 The MRPA, and its successors, and the State will not unreasonably delay in notifying Mrs Bestry and her surviving children, as the case requires, when and to what extent Lot 4 or any part of it was no longer required for the Stephenson and North Perimeter Freeways …
PARTICULARS OF IMPLIED TERMS
The Implied Terms at [51.1], [51.2], [51.3] and [51.4] are to be implied as a matter of law or because they are:
A. Reasonable and equitable;
B. Necessary to give business efficacy to the 1965 Deed;
C. Obvious;
D. Capable of clear expression; and
E. Do not contradict any express term of the 1965 Deed.[78]
Breach of the 1965 Deed and relief sought
[78] SOC [51].
Following the plea in SOC [78] quoted above, the plaintiff pleads that in breach of cl 7 of the 1965 Deed and, or, the Construed Term and, or, the Implied Terms, WAPC, as agent of the State, has failed to give Mrs Bestry and, or relevantly, the plaintiff (other than the first and second returns of land):
79.1The notice required by clause 7;
79.2The option to re-purchase any part of Lot 4 not required for the Designated Purpose; and/or
79.3The information necessary to enable Mrs Bestry and/or her children to consider, enforce or test their rights arising under the 1965 Deed.[79]
[79] SOC [79].
The plaintiff pleads that by that breach or breaches he has suffered loss and damage in the result that he has not received any notice that portions of Lot 4 were no longer required for the Designated Purpose,[80] and has lost the 'option' or 'right' to purchase such land.[81]
[80] SOC [82.1].
[81] SOC [82.2], [83].
The plaintiff then seeks, amongst other relief:
1.declarations as to the pleaded breach of cl 7 of the 1965 Deed or the other terms pleaded;[82]
2.specific performance of the 1965 Deed, or alternatively damages;[83] and, or,
3.damages for breach of contract.[84]
[82] Prayer for relief [3].
[83] Prayer for relief [9].
[84] Prayer for relief [10].
Summary judgment application on the contract case: summary of the parties' contentions
Mr Bestry identified four constructional choices for cl 7(i) of the 1965 Deed; being:
1.the 1965 Deed was for the purpose of acquiring the subject land for the construction of controlled access roads being those particularly identified in the Schedule - namely the 'Stephenson and North Perimeter Freeways';[85]
2.the land to which cl 7(i) applies is any land not required for the purposes of any controlled access road;[86]
3.cl 7(i) of the 1965 Deed was for the purpose of any road;[87] or
4.the land could be required for any purpose by the State without triggering the option in cl 7(i) of the 1965 Deed.[88]
[85] ts 41 - 42.
[86] ts 42.
[87] ts 42.
[88] ts 44 - 45.
As I understand it, Mr Bestry contends that if either of the first two, and maybe any of the first three, constructional choices is arguable, then summary judgment should be refused.
In short, Mr Bestry contends that 'resolving any competing construction choices is a matter for trial after fact finding is complete and the Court has heard full argument'.[89]
[89] Mr Bestry's responsive submissions filed 29 April 2024 [16].
Mr Bestry contends that there are disputed factual questions between the parties which contribute to the unsuitability of the summary judgment application. Mr Bestry submits that:
The Plaintiff's claim, in respect of the 1965 Deed, is based on contextual pleaded material facts said to be known to all parties to the 1965 Deed at the material time which necessarily inform the proper construction of clause 7. That is the orthodox approach.[90]
…
The Court will be faced with different construction choices at trial. Neither it nor the Plaintiff should be required to engage those substantive issues in an interlocutory application.[91] (emphasis in the original and footnote omitted)
[90] Mr Bestry's responsive submissions filed 29 April 2024 [12].
[91] Mr Bestry's responsive submissions filed 29 April 2024 [28].
Notwithstanding Mr Bestry's references in his submissions to there being disputed factual questions, as I understand it, he did not identify any material, disputed question in the course of the State's application. Indeed, it appears that the pleaded facts and the facts set out above are relevantly not in dispute.
Mr Bestry primarily says that 'use' in cl 7(i) of the 1965 Deed means, on its proper construction, use for the construction of the Stephenson Freeway. He says that is apparent from both the correspondence and the Schedule to the 1965 Deed.[92]
[92] ts 41.
Mr Bestry contends that the references in the correspondence leading to the 1965 Deed make it plain, or at least arguable, that the purpose of the acquisition of the land (and consequently the option to re‑acquire) was in respect only of the Stephenson Freeway.
Mr Bestry says that the Stephenson Freeway and the Mitchell Freeway are not the same road, infrastructure project, public work or freeway that was contemplated at the time of the 1965 Deed.[93]
[93] Mr Bestry's responsive submissions filed 29 April 2024 [27], [39], [56].
Mr Bestry accepts that:
1.the reference to the 'North Perimeter Freeway' in the Schedule to the 1965 Deed is to the road now known as the Reid Highway;[94]
2.the Stephenson Freeway was to be a 'controlled access road' or a 'controlled access highway';[95] and
3.portions of the Reid Highway and the Mitchell Freeway have been constructed in part on the subject land.
[94] SOC [45A]; Mr Bestry's responsive submissions filed 29 April 2024 [57].
[95] SOC [12]; Mr Bestry's responsive submissions filed 29 April 2024 [20].
It is to be noted that Mr Bestry accepts, it appears, that part of the land reserve which he contends should be offered to him via the cl 7(i) option is in use for the North Perimeter Freeway or the Reid Highway. It must be that Mr Bestry contends that some parcel of what is now Lot 500 can be offered to him.
The State defendants contend that the plaintiff's case is so clearly untenable that it cannot succeed.[96]
[96] State defendants' outline of submissions filed 15 April 2024 [1].
Principally, the State defendants submit that the subject land remains required for use by the State and so no obligation has arisen under cl 7 of the 1965 Deed.[97] That submission, in effect, proceeds on the basis that the proper construction of cl 7(i) of the 1965 Deed is as per the fourth constructional choice presented by Mr Bestry.
[97] State defendants' outline of submissions filed 15 April 2024 [4].
The State defendants say that all of Lot 4 or the subject land (now as part of Lot 500) remains dedicated as public roads, vested in the Crown, reserved as a 'primary regional road' under the Metropolitan Region Scheme and, accordingly, remains required for use by the State defendants.[98]
[98] State defendants' outline of submissions filed 15 April 2024 [4], [5].
The State defendants say that is sufficient factually to dispose of the plaintiff's contractual claims.[99]
[99] State defendants' outline of submissions filed 15 April 2024 [43].
It appears to be common ground that the land which Mr Bestry contends should be offered to him is prima facie still required by the State by reason of it remaining reserved.[100]
[100] ts 156, 159.
Broadly, the plaintiff's counter to that submission is to contend that any 'use' by the State defendants is not sufficient for the purposes of cl 7(i) and that the purchase and option in the 1965 Deed were tied back to the Designated Purpose pleaded in SOC [45] and [45A].
The State defendants do not accept that the Designated Purpose as pleaded can be relevant to cl 7(i) of the 1965 Deed. However, the State defendants submit that if the Designated Purpose is relevant to cl 7(i) of the 1965 Deed then the plaintiff's claim is still bound to fail. That is because the subject land, or Lot 4, is, still, 'in fact used for the very purpose for which it was purchased'.[101]
[101] State defendants' outline of submissions filed 15 April 2024 [44].
That is, the State defendants say, in effect, even if the first construction presented by Mr Bestry is adopted, his claim is not viable. The State defendants contend that:
1.what occurred on 7 October 2011 has, and could have, no impact on any part of the subject land; and
2.'all' that has occurred is that the road planned from Osborne Park through the Bestry land remains as planned, but has had its name changed.
Principles applicable to the summary judgment application
As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd[102] at [24], the principles to be applied on an application for summary judgment are well established:[103]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted. (case citations have been omitted)
[102] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14.
[103] See also Pisano v South Metropolitan Health Service [2023] WASCA 80 [52].
In applying those principles, I am to consider Mr Bestry's case as pleaded and the facts which, without objection, the parties have put before the Court.
That is, I am to determine whether the claims made by Mr Bestry are sufficiently arguable that they should proceed to trial on the above principles.
Principles applicable to the interpretation of the 1965 Deed
The proper construction of contracts is the subject of many authoritative decisions. I have taken the following summary of principles from the Court of Appeal decisions in Wright v Lemon[104] and Black Box Control Pty Ltd v Terravision Pty Ltd.[105] The principles stated in the first case were specifically addressed to a commercial contract, but I do not understand the principles to be any different in their application to the 1965 Deed. That is, the references to a reasonable business person is to be taken as a reference to what a reasonable person would have understood the terms to mean.[106]
[104] Wright v Lemon [2024] WASCA 19 (Wright v Lemon). In setting out the principles, I have not included the many decisions cited to support those principles.
[105] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 (Black Box).
[106] See, for example, Black Box [42(1)].
The relevant authorities can be summarised as follows:
1.the proper construction of a commercial contract is to be determined objectively by reference to what a reasonable business person would have understood the terms to mean;[107]
[107] Wright v Lemon [529] (Buss P); Black Box [42(1)].
2.that objective determination has regard to the contract's text, context and purpose or objects;[108]
[108] Wright v Lemon [529] (Buss P); Black Box [42(2)].
3.extrinsic evidence may assist where the construction task is facilitated by an understanding of the genesis of the transaction, its background or context;[109]
[109] Black Box [42(3)].
4.the hypothetical reasonable business person must be placed in the position of the parties, and it is from that perspective the Court considers the circumstances surrounding the contract and the commercial purpose or objects sought to be achieved by it;[110]
5.a contract must be construed as a whole and regard must be had to all of the provisions with a view to achieving harmony between them;[111]
6.where a word or an expression is defined in a contract, the Court will read the text of the definition into the relevant clause and construe the relevant clause having regard to the contract as a whole;[112]
7.definitions do not have substantive effect and the definition is not to be construed in isolation from the operative provisions;[113]
8.the surrounding circumstances known to the parties may be used in construing a commercial contract but their subjective intentions are not to be used;[114]
9.the parties' intentions and expectations are superseded by, or merged into, the contract;[115]
10.if an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning;[116]
11.there is no fixed use to which recitals to a deed may be put;[117]
12.recitals may serve a variety of functions within a deed;[118] and
13.a recital may be used as an aid to construction.[119]
[110] Wright v Lemon [529] (Buss P).
[111] Wright v Lemon [531] (Buss P); Black Box [42(10)].
[112] Wright v Lemon [533] (Buss P).
[113] Black Box [42(11)].
[114] Wright v Lemon [534]; Black Box [42(8)].
[115] Black Box [42(8)].
[116] Black Box [42(5)].
[117] Wright v Lemon [537].
[118] Wright v Lemon [538].
[119] Wright v Lemon [538].
Consideration of Mr Bestry's contractual case
The preferable construction
In my view, the ordinary reading of cl 7(i) of the 1965 Deed is that 'use' is not defined by, or tied to, any particular use by the MRPA or the Crown.
There is no mention in the body of the 1965 Deed of any particular purpose or use for which the subject land is being acquired. The only reference to roads appears in the plan which is the Schedule to the 1965 Deed.
As pleaded in SOC [45.1], after 'Reference:' in the bottom left of the plan there are the words:
1.'LAND REQUIRED FROM LOT PT 95 FOR C.A. ROADS'.
As pleaded in SOC [45.2] in the box at the bottom right there are the words: 'STEPHENSON & NORTH PERIMETER FREEWAYS LAND REQUIRED FROM LOT PT 95 - BALCATTA ROAD'.
Mr Bestry contends that the use for which the land was being acquired is apparent from and established by those words in the Schedule. Of course, it may be noted that the Schedule to the 1965 Deed referred to both the Stephenson and North Perimeter Freeways.
However, in my view, the better reading of the 1965 Deed is that the Schedule simply identified or 'delineated' the subject land, rather than the Schedule setting out the purpose for which such land was being acquired.
I think that is consistent with the definition of 'subject land' in the recitals to the 1965 Deed and the operative provisions (read with that definition) which make provision for the subject land but which make no other reference to the use or purpose for which the land was acquired.
Of course, Mr Bestry does not rely solely on the Schedule. He relies on the correspondence which leads up to the 1965 Deed and in particular:
1.the letter from the MRPA to the Public Works Department of 13 August 1964;[120]
2.the letter from the MRPA to Mrs Bestry of 13 August 1964;[121] and
3.the subject of the letter sent to Mrs Bestry dated 15 January 1965.[122]
[120] As quoted in [29] above and which is part of 'LER-1' at page 44 of the Rowley CIV 1166 affidavit.
[121] Part of 'LER-1' at page 50 of the Rowley CIV 1166 affidavit; 'CEF-19' at page 82 of the first Foster affidavit.
[122] 'RAGB-6' of Mr Bestry's first affidavit; 'CEF-21' at page 84 of the first Foster affidavit.
In relation to the letter from the MRPA to the Public Works Department of 13 August 1964 (and which does not appear to have been sent to Mrs Bestry), Mr Bestry says that it records what the State knew of Mrs Bestry's position at the time.[123]
[123] ts 31.
There is no direct evidence as to what Mrs Bestry knew at the relevant times. Certainly, the TPB's letter of 21 May 1964 told Mrs Bestry that the Bestry Land was 'affected by major highway proposals'.[124]
[124] The letter is 'CEF-17' at page 80 of the first Foster affidavit.
It may be accepted that the three letters on which Mr Bestry particularly relies in the lead up to the 1965 Deed did refer specifically to the Stephenson Freeway. There is no evidence, understandably, as to what further, if anything, Mrs Bestry understood about the plans for the Stephenson Freeway at that point in time. And there was no suggestion that there will be any further evidence (outside of the correspondence) able to be adduced by Mr Bestry on the point at a trial.
I accept that it may be said that the surrounding circumstances or context were that the State was acquiring, relevantly, part of Lot 95 in the 1965 Deed for the purposes of highways or freeways, or possibly for the Stephenson and North Perimeter Freeways more specifically.
Those purposes, in my view, are not reflected in the actual words used in the 1965 Deed, read as a whole. In my view, the plain words used in the 1965 Deed are to the effect that the land was being acquired by the State without nominating a purpose for which it was being acquired. And, that the option in cl 7(i) was triggered if any of the acquired land was no longer required for any use by the Crown (including through the MRPA).
With respect to Mr Bestry's submissions, I consider that the words of cl 7(i) are plain and neither the Schedule, nor the correspondence Mr Bestry relies upon, provide a basis to effectively read words into the clause to support the Designated Purpose pleaded.
In short, I consider that the fourth constructional choice 'presented' by Mr Bestry is the correct and preferable reading of cl 7(i) of the 1965 Deed and if that is correct, then the State defendants should have summary judgment, at least, on the pleaded contractual claims.
I would not find that 'not required for use' in cl 7(i) was to be confined to the 'use' of roads or freeways or the Stephenson Freeway.
An arguable construction
However, if I am wrong about that, I have considered the constructional choice which Mr Bestry puts forward as his preferred construction and the one which is most favourable to his case: namely, that 'use' in cl 7(i) of the 1965 Deed refers to the purposes of the Stephenson and North Perimeter Freeways.
On that construction, the question is whether Mr Bestry's pleading as to the Designated Purpose could succeed and whether the events of 7 October 2011 could have the effect pleaded for by Mr Bestry: that is, that the land was no longer required for that use.
I consider that even taking Mr Bestry's preferred construction of cl 7(i), the facts from 1965 onwards make it plain that there was no material change to the State's plans from 1965 to the present and, in particular, no change able to be found in October 2011 as pleaded by Mr Bestry.
In my view, those references to the Stephenson Freeway in the correspondence relied upon cannot be divorced from what was planned for the Stephenson Freeway at that time.
The purpose of setting out the plans for the Stephenson Freeway from here is not to suggest that Mrs Bestry understood what those plans were. Rather, it is to assess what might be thought to be the high point of Mr Bestry's contentions to the effect that the Stephenson Freeway plans as at the time of the 1965 Deed were materially altered by the events of 7 October 2011, as pleaded.
In my view, the established facts are:
1.the Stephenson Freeway as planned was to proceed, broadly, northwards from Nedlands;
2.at Osborne Park it was to intersect with the Mitchell Freeway; and then
3.continue on through Lot 4 to Hamersley after going through the North Perimeter Highway interchange.
so much is apparent from the map numbered 903/62, being Attachment 1 the SOC.[125]
[125] Referred to in [24] above.
As noted above, it is not in dispute that immediately prior to 7 October 2011 the land which is the subject of Mr Bestry's suit was reserved for a road reserve and that remained the position immediately after 7 October 2011 (and remains the case to the day).
That road reserve is not 'reserved' for the Stephenson Freeway or, for that matter, any other named highway or freeway.
If, however, the name of the particular road was important to that inquiry, (and I would not find it was), then, in my view, the undisputed factual material shows that for the land acquired from Mrs Bestry by the 1965 Deed there has been no particular or discernible change in the purpose of the road reserve. And, more particularly, there was no change in the particular purpose of the reserve at 7 October 2011.
Mr Bestry did not dispute the State defendants' evidence to the effect that (aside from the two returned parcels) Lot 4 or the subject land was amalgamated into 'Lot 500'[126] which was re-vested in the Crown and dedicated as a road on 10 June 2008.[127]
[126] Crown Land Title Volume LR3154 Folio 433 Lot 500 on Deposited Plan 59906.
[127] State defendants' submissions filed 13 December 2024 [16] relying on first Foster affidavit 'CEF-8A', 'CEF-8B' and 'CEF-8C'.
Ms Rampellini produced a plan which was marked 'KLR-18'.[128] That marked in red land which was reserved for 'Primary regional roads'.[129]
[128] Rampellini affidavit [51].
[129] Rampellini affidavit [51(a)].
That plan showed in a black dotted line Lot 4 or the subject land.[130]
[130] Rampellini affidavit [50(b)].
With the exception of two small parcels of land it appeared that all of Lot 4 or the subject land was within the road reserve. That is accepted by Mr Bestry.
The two parcels of Lot 4 or the subject land shown on the plan 'KLR-18' which are not part of the road reserve are the two previous land returns which Mr Bestry pleads in sections H-1 and H-2 of the SOC.[131]
[131] Counsel for Mr Bestry: ts 154 - 155.
Further, Mr Bestry accepts (with the exception of the two land returns) that Lot 4 or the subject land has been the subject of that road reserve marked in red on the plan 'KLR-18' both before and after 7 October 2011.[132]
[132] ts 153 - 155.
Even if one goes back to the map which was Attachment 1 to the SOC, it is apparent that while the name may have changed, there has been no relevant or material change in the roads proposed as they affect the Bestry land. From before the 1965 Deed, there was always going to be a road proceeding northwards from the point marked 'X' at Osborne Park through the North Perimeter Highway interchange. That has not changed since 1965 and, certainly, did not change in October 2011.
If that be accepted, then with respect, in my view, Mr Bestry's contractual claim, even on his preferred construction, is doomed to fail such that the State defendants ought have summary judgment.
In short, my view is that even if one takes Mr Bestry's pleading of the Designated Purpose as being arguable, he cannot prove at trial that as a result of things which occurred in October 2011, the relevant land is not required for the Designated Purpose.
Clause 7(i) of the 1965 Deed has, as Mr Bestry accepted,[133] an element of prospectivity about it. Infrastructure projects, including roads, are planned for (generally speaking) well in advance of their construction. Prudent planning may suggest that land is reserved for infrastructure even if the exact requirements of that infrastructure in the future cannot be identified with precision at the present. That, in my view, does not have the consequence that the land is not still, in the language of cl 7(i), 'required for use by … the Crown'.
[133] ts 157.
That is especially so in circumstances where Mr Bestry accepted[134] that the current reserving of the relevant land was prima facie evidence that it was still required for use. It is very difficult to imagine how Mr Bestry could prove at a trial that the State did not require at some point in the future the reserved land for the Designated Purpose. Mr Bestry's position requires the Court to find that, somehow, what could further the Designated Purpose in the future can be determined at a trial as though fixed in time.
[134] ts 157 - 158.
In my view, the Construed Term adds nothing of substance to Mr Bestry's primary claim. That is because it assumes the correctness or viability of Mr Bestry's primary claim in contract.
By parity of reasoning, the Implied Terms pleaded do not assist Mr Bestry if his primary claim in contract is not arguable.
Estoppel by conduct
Mr Bestry pleads SOC [52] ‑ [63] under section 'H. Estoppel by Conduct. The principal factual allegations concern the two offers which led to the two re‑acquisitions.
While section H continues past SOC [56], i.e. by SOC [59] ‑ [63], it is [52] - [56] which are identified in Mr Bestry's submissions as the claim to an estoppel by conduct. [135] That may be a typographical error.
[135] Mr Bestry's submissions filed 29 April 2024 [66].
Notwithstanding that, section H of the SOC concludes with [63] which pleads:
63.As a result of the conduct and matters pleaded at [52] ‑ [62] herein, the Defendants are estopped from asserting that they are not obliged to provide the Plaintiff with any notices and offers to purchase required under clause 7 of the 1965 Deed in respect of any portions of Lot 4 that are not required for the Designated Purpose, and are obliged to do so.
Particularly by reference to SOC [63] it is not clear to me that the 'estoppel by conduct' plea is independent, or an alternative, to the plaintiff's plea as to the construction of cl 7(i) of the 1965 Deed.
That is, I do not understand how the returns could give rise to a separate, maintainable claim, if Mr Bestry's construction of the 1965 Deed does not give him a viable claim which should be left to trial as described above.
With respect, there appears to be a complete circularity in Mr Bestry's pleading on the significance of the two returns.
In those circumstances, I consider that the estoppel by conduct plea in section H falls if Mr Bestry's contract case is found to be unarguable. I did not understand Mr Bestry to articulate in his submissions a different, arguable result.[136]
[136] Mr Bestry's submissions filed 29 April 2024 [66]; ts 66 - 67.
Proprietary interest
Mr Bestry's SOC [64] pleads that cl 7 of the 1965 Deed, on its proper construction, 'conferred … a proprietary interest in those parts of Lot 4 that are yet to be used for the Designated Purpose'.
It is difficult to understand the basis of this plea.
It appears from Mr Bestry's submissions that the proprietary interest asserted does not arise at the time that the 1965 Deed was entered into.[137] That must be so as the 1965 Deed provided that the subject land was being sold 'free of encumbrance' or 'all encumbrances'.
[137] Mr Bestry's submissions filed 29 April 2024 [63].
Rather, it appears that Mr Bestry contends that his proprietary claim could, and did, arise after the 1965 Deed:[138]
1.by the option to purchase under cl 7 of the 1965 Deed;
2.on the basis of a 'proprietal estoppel' - considered further below; or
3.upon a resulting or constructive trust - considered below.
[138] Mr Bestry's submissions filed 29 April 2024 [63].
In relation to the first of those, the proprietary interest, asserted on that basis again, in my view, stands or falls on the arguability of Mr Bestry's contract case.
As will be seen, I have found below that both the 'proprietal estoppel' and the resulting or constructive trust also stand or fall on the viability of Mr Bestry's contract case.
Consequently, the whole of the pleaded proprietary interest claim falls as I have found Mr Bestry's contract case should not be left to trial.
Further, and in any event, it is difficult to understand how any proprietary interest, asserted today for example, could exist in light of the amalgamation of the subject land into Lot 500 and its re‑vesting in the Crown on 10 June 2008.
Proprietal estoppel
The plea made by Mr Bestry in his SOC [65] ‑ [66] is that the defendants created, encouraged or induced Mrs Bestry to assume that any part of Lot 4 not required for the Designated Purpose would be offered back for re‑purchase: this is defined as the 'Assumed Effect'.
The factual basis on which the defendants did so is pleaded to be by:
1.the 'presentation' by Crown Law of cl 7 of the 1965 Deed to Mrs Bestry on the basis that it gave effect to the Plaintiffs' Request: SOC [65(a)] and [31]; and
2.the first and second returns pleaded at SOC [52] - [58].
Mr Bestry then pleads that if cl 7 of the 1965 Deed is found not to have the Assumed Effect (i.e. that there would be an offering back to repurchase any part of Lot 4 not required for the Designated Purpose) then Mr Bestry is, nonetheless, entitled to rely upon that assumption and it would be inequitable and unconscionable were the State defendants now permitted to resile from it.
Mr Bestry's submissions both in writing and orally did not further support or explain the plea made in SOC [65] - [66].
It is not articulated, with respect, how the 'presentation' of cl 7(i) to Mrs Bestry following Mr Bestry's Request 'created, encouraged or induced' the Assumed Effect. It is not explained by Mr Bestry in his submissions.
As is apparent from the review of the facts above, the Plaintiff's Request (as defined and as dependent upon the file note pleaded at SOC [27] and quoted above) appears to be reflected in cl 7(i) of the 1965 Deed. There is no other fact pleaded which gives the 'presentation' an apparently different effect.
Further, I have dealt with the first and second returns under the headings 'Estoppel by conduct' and 'Proprietary interest'.
In the circumstances, I consider that the 'proprietal estoppel' stands or falls on the viability of Mr Bestry's contract case.
A resulting or constructive trust
The SOC at [67] pleads that on the transfer from Mrs Bestry of Lot 4 pursuant to the 1965 Deed, the subject land was impressed with a resulting or constructive trust.
This is a most difficult plea to make, in the circumstances where:
1.the 1965 Deed provided for the transfer to be free from all encumbrances;
2.the estate in fee simple of the subject land was transferred from Mrs Bestry to the Crown on 9 June 1967; and
3.Lot 4 was amalgamated into Lot 500 which was re-vested in the Crown on 10 June 2008.
In any event, the trust contended for by Mr Bestry is dependent on the Designated Purpose and does not, in my view, provide a different or separate case for Mr Bestry which is not dependent on the viability of his contract case.
Unjust enrichment
Mr Bestry pleads that, to the extent that State defendants have 'controlled, retained or disposed of any part of Lot 4 not required for the Designated Purpose', they have been unjustly enriched at the expense of the plaintiff.[139]
[139] SOC [68].
In the course of the hearing, I understood it to be common ground that there had not been any such 'disposal', other than to Mr Bestry and his siblings via the two re-acquisitions or land returns, so that aspect of the plea can be put to one side. Consequently, particulars B and C to SOC [68] appear unsustainable factually.
Mr Bestry submits that his case of action in contract and unjust enrichment are not 'contiguous' (by which I understand him to say the latter is not dependent on the former) and they are 'separate and distinct causes of action'.[140]
[140] Mr Bestry's submissions filed 29 April 2024 [67].
However, the material facts pleaded in SOC [68] appear, again, dependent on the survival of Mr Bestry's contract claim by their reliance on the Designated Purpose. That is, if Mr Bestry's contract claim is not sufficiently arguable, then the State defendants could not have been unjustly enriched by the 1965 Deed. There would have been, rather, an acquisition or a retention of the property via a contract.
Further, there is no plea by Mr Bestry to set aside the 1965 Deed. It is not at all clear how the claim for unjust enrichment could succeed while the 1965 Deed remains on foot.
The plea in SOC [68] is not proved or explained by its Particular A which puts as a factual matter which does not appear to be pleaded elsewhere in the SOC as a material fact. And, in any event, it appears factually to be unsustainable given Mr Bestry's acceptance of the prima facie evidential effect of the continuing road reserve.
It is unexplained, with respect, how in the absence of, effectively, setting aside the 1965 Deed, the defendants can have been unjustly enriched by the performance of a contract, namely the 1965 Deed.
In my view, it is not insignificant that in looking at Mr Bestry's prayers for relief there is none which immediately would answer a plea of unjust enrichment if it were arguable. This absence does not assist.
By SOC [69], Mr Bestry pleads the 'unjust factors which give rise to the unjust enrichment pleaded at [68]':
69.… arise from the undue advantage that was taken, and is being taken, of the Plaintiff by:
69.1The CLD's and their principals' (including the MRPA and the Second Defendant respectively) failure to advise Mrs Bestry or the Plaintiff to seek independent legal advice as to the terms of the 1965 Deed prior to its execution and whether those terms met the Plaintiff's Request;
69.2The CLD's and the CLD's Successors' failure, and thus the failure of their principals, including the First and Second Defendant respectively, to deal with Mrs Bestry or the Plaintiff as the client of the CLD or the CLD's Successors for the purpose of the 1965 Deed by failing to keep them, or he, (as the case requires) informed as to any portion of Lot 4 not required for the Designated Purpose;
69.3The CLD Representation (at [31]), and thus the representation of the CLD's Successors, and also that of their principals, including the First and Second Defendant respectively, by representing to Mrs Bestry and the Plaintiff that clause 7 of the 1965 Deed was consistent with the Plaintiff's Request but then adopting a different construction after execution of the 1965 Deed despite the Plaintiff's Reliance and the Plaintiff's Further Reliance;
69.4The MRPA's failure, and thus the failure of its successors and principals, including the First and Second Defendant respectively, to act consistently, by failing to act consistently with the conduct pleaded at [52] - [62];
69.5 The MRPA's breach, and thus the breach of its successors and their principals, including the First and Second Defendant respectively, of the Plaintiff's Trust by failing to deal with Lot 4 as if impressed with that trust; and
69.6The Plaintiff says that if his construction of clause 7 of the 1965 Deed is not accepted, such that it does not give effect to the Plaintiff's Request then he has acted on a mistake of law and/or fact induced by the CLD, the Defendants and/or their predecessors.
Given the plea in SOC [68] as particularised, it is difficult to immediately marry up the plea in SOC [69] which is ostensibly there to support the plea in SOC [68].
With respect, there appears to me to be an immediate complication introduced by SOC [69] by the plea of 'undue advantage' in the chapeau to that paragraph.
That is especially so when one has regard to the plea in SOC [70] of unconscionable conduct against the State defendants. One would expect that the 'undue advantage' in SOC [69] is intended to be a distinct and separate plea from the unconscionable conduct pleaded in SOC [70]. The relationship between the two pleas was not explained by Mr Bestry in his written or oral submissions.
SOC [69.1] - [69.3] seems to me to depend on Mr Bestry being able to maintain an arguable claim that the State defendants and, or, Crown Law, was obliged to give such advice.
As will be seen, I have reached the view that it is not arguable that Crown Law was acting for Mrs Bestry or Mr Bestry in relation to the Plaintiff's Request or otherwise in the preparation of the 1965 Deed.
If it is not arguable that Crown Law was acting for Mrs Bestry at the time, it is entirely unclear how the State defendants and/or Crown Law came under an obligation as implicitly pleaded in SOC [69.1] ‑ [69.3].
SOC [69.2] - [69.3] also appear to me to be dependent on the viability of Mr Bestry's contract case.
SOC [69.4] is, in effect, dependent on Mr Bestry establishing an arguable case under SOC [52] ‑ [62] for a 'proprietal estoppel'. For reasons I have given above, I do not consider that claim is arguable.
SOC [69.5] depends on there being a resulting or constructive trust which, as I set out above, appears to depend on Mr Bestry's contract case and the Designated Purpose being arguable.
SOC [69.6] is difficult to follow, with respect.
Firstly, as I have said above, the facts are to the effect that the Plaintiff's Request was reflected in cl 7(i) of the 1965 Deed. Indeed, Mr Bestry's primary case is that cl 7(i) of the 1965 Deed, on its proper construction, is to be read as incorporating the Designated Purpose.
It was accepted in the hearing that the best,[141] indeed the only, evidence of the Plaintiff's Request is the file note which was in evidence. As I understand it, Mr Bestry says that the correspondence which preceded the Plaintiff's Request means that it and cl 7(i) are limited to the Designated Purpose.
[141] ts 29; SOC [27].
If it appears that the Plaintiff's Request is reflected in cl 7(i) and it is not arguable that there has been a departure from the Designated Purpose, then the plea at SOC [69.6] must fail.
Further, the plea at SOC [69.6] appears to be hopeless in that there is no plea (nor, for that matter, evidence adduced in this application from which a conclusion could be drawn at trial) as to:
1.Crown Law or the State defendants' knowledge of any mistake on the part of Mrs Bestry or Mr Bestry; nor
2.how Mr Bestry's 'mistake of law' was 'induced' by Crown Law or the State defendants.
Kiefel CJ, Bell and Keane JJ in Mann v Paterson Constructions Pty Ltd[142] emphasised that restitutionary claims must respect contractual regimes.[143] In circumstances where there is no plea for rectification or to set aside the 1965 Deed, it is unexplained how the matters pleaded at SOC [69.6] in aid of the plea of 'undue advantage' in the chapeau to SOC [69] arguably lead to there being a viable claim on Mr Bestry's part.
[142] Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560.
[143] Mann v Paterson Constructions Pty Ltd [14], [18] (Kiefel CJ, Bell and Keane JJ).
Unconscionable conduct
In SOC [70] there is a rolled‑up plea that, by virtue of conduct pleaded in 17 other paragraphs of the SOC, the defendants have acted unconscionably.
The plea, were I not granting summary judgment for the defendants, should be struck out, if for no other reason than because it fails to identify what conduct is said to be unconscionable and when it is said to have occurred.
Mr Bestry made the following submission on this plea, which I have quoted in its entirety:
69.In reference to DS[71], the causes of action in unconscionable conduct and contract are not contiguous, they are separate and distinct causes of action. This is made plain by Minute [70]. The plea at [70] relies on many matters in addition to those associated with the cause of contract.[144]
[144] Mr Bestry's submissions filed 29 April 2024 [69].
I did not find this submission to be helpful and there was no further exposition of the plea in Mr Bestry's oral submissions.
Doing the best I can, it appears that if none of the other causes of action referred to via those 17 paragraphs referred to in SOC [70] is viable, then this plea is similarly unviable.
Summary judgment application: disposition
For the above reasons, I consider that this is a clear case. I have a high degree of certainty as to the ultimate outcome of the proceedings after a trial. The State defendants should have judgment.
Defendant's Strike-out Application
As noted, the State defendants sought that the SOC be struck out if they were not granted summary judgment.
Because of the conclusion I have reached on the summary judgment application, I have not determined that alternative application.
I consider that the pleading of the SOC is problematic in a number of respects. I have not sought to identify each and every way in which that is so. I consider, without deciding, that there is force in many of the complaints which the State defendants made of the SOC.
The plaintiff's restraint application
As I have found that the State defendants should have summary judgment, Mr Bestry's restraint application is inutile.
However, in deference to the arguments which were addressed to it and in case I am wrong to grant the State summary judgment, I have set out my reasons in short form as to why I would have dismissed Mr Bestry's restraint application.
In essence, the plaintiff puts his application on two bases[145] and says that the SSO:
1.is in a position of conflict where it owes the two State defendants' professional obligations at the same time as continuing to owe professional obligations to the plaintiff;[146] and
2.is in a position where there is a conflict between its own interests as a party whose conduct is impugned and its professional obligations to the Court.[147]
[145] ts 71 - 72.
[146] This is referred to the 'Duty of Loyalty Ground' in the plaintiff's submissions dated 14 March 2024 [34.2].
[147] This is called the 'Administration of Justice Ground' in the plaintiff's written submissions dated 14 March 2024 [34.3].
Mr Bestry pleads that:
1.neither Mrs Bestry nor he was legally represented in the lead up to the 1965 Deed;[148]
2.they relied upon Crown Law to draft an option to purchase consistent with the Plaintiff's Request;[149]
3.any option (in the 1965 Deed) had to be enforceable for a period potentially well beyond the then statutory limitation periods;[150] and
4.Crown Law presented what became cl 7 in the 1965 Deed to Mrs Bestry on the basis that it gave effect to the Plaintiff's Request.[151] The SOC defines the presentation by Crown Law as the 'CLD Representation'.[152]
[148] SOC [29.1].
[149] SOC [29.3], [32.1].
[150] SOC [29.4].
[151] SOC [31].
[152] SOC [31].
The plaintiff then pleads:
33.In the premises, the CLD stood as fiduciary to Mrs Bestry and the Plaintiff, as their de facto, implied and/or presumed legal representative as to the construction, effect, operation and enforceability of any option to purchase included in any deed drafted by the CLD pursuant to the Plaintiff's Request by which the MRPA purchased any portion of the Bestry Land ('Fiduciary Relationship').[153] (emphasis in the original)
[153] SOC [33].
The plaintiff pleads that the cl 7 'option':
44.1[was] Included in the 1965 Deed to meet the Plaintiff's Request, and
44.2 [is one] To which the Fiduciary Relationship,[154] the Fiduciary Obligations[155] and the Continuing Fiduciary Obligations[156] apply.
[154] Defined in SOC [33].
[155] Defined in SOC [34].
[156] Defined in SOC [38].
Therefore, pursuant to the claimed fiduciary relationship, the plaintiff pleads the CLD was obliged to exercise certain duties[157] and these fiduciary duties continue now and until the death of the plaintiff (being the last living child of Mrs Bestry).[158]
[157] SOC [34].
[158] SOC [35]; and the plaintiff cites the Law Reform (Miscellaneous Provisions) Act 1941 (WA).
Against the SSO, Mr Bestry makes the following allegations in the SOC:
72.The CLD as a fiduciary (see [33] and [34] herein), the CLD's Successors, and their principals, including the First and Second Defendants, by virtue of the CLD's conduct when it failed to ensure that Mrs Bestry and/or her children were advised to seek independent legal advice as to the terms of the 1965 Deed prior to its execution, breached the Duty to Act Professionally (at [34.1]), the Duty to Avoid Conflicts of Interest (at [34.2]) and the Duty of Best Interest (at [34.3]).
73.To the extent that clause 7 of the 1965 Deed is found not to require that any portion of Lot 4 not used for the Designated Purpose be offered for repurchase to the Plaintiff, the CLD as a fiduciary (see [33] and [34] herein), the CLD's Successors, and their principals, including the First and Second Defendants respectively, breached the Duty to Act Professionally (at [34.1]), the Duty of Best Interest (at [34.3]), and the Duty of Enforceability (at [34.4]).
74.The CLD as a fiduciary (see [33] and [34] herein), the CLD's Successors, and their principals, including the First and Second Defendants, by virtue of the CLD's conduct when it failed, within a reasonable period, to ensure that Mrs Bestry and/or her children were advised when portions of Lot 4 were no longer required for the Designated Purpose, breached the Duty to Act Professionally (at [34.1]), the Duty of Best Interest (at [34.3]) and the Duty of Enforceability (at [34.4]).
75.The CLD as a fiduciary (see [33] and [34] herein), the CLD's Successors, and their principals, including the First and Second Defendants, breached each of the duties pleaded at [34.1] ‑ [34.5] by virtue of the CLD's conduct when the CLD failed, within a reasonable period to:
75.1Advise the Plaintiff that the CLD had, in or around 1978, given legal advice to the MRD that the MRD was obliged to offer to sell portions of the Bestry Land back to those members of the Bestry Family entitled under clause 7 of the 1965 Deed ('CLD 1978 Legal Advice');
75.2Share with the Plaintiff the CLD 1978 Legal Advice;
75.3Share with the Plaintiff any other legal advice provided by the CLD or the CLD's Successors as to the construction, application or execution of clause 7 of the 1965 Deed; and
75.4Share any information relevant to whether the Plaintiff could, or should, bring proceedings to enforce clause 7 of the 1965 Deed, including but not limited to when portions of Lot 4 were no longer required for the Designated Purpose.
76.The CLD as a fiduciary (see [33] and [34] herein), the CLD's Successors, and their principals, including the First and Second Defendants, breached each of the duties pleaded at [34.1] ‑ [34.5] when the CLD and the CLD's Successors failed to recognise that their obligations to the Plaintiff, precluded, inter alia, the CLD and SSO acting for the Defendants in respect of any matter arising out of the construction of the 1965 Deed, including by acting for the Defendants in this litigation.[159] (emphasis in the original)
[159] SOC [72] - [76].
The plaintiff's first Prayer for Relief is:
(1)A declaration that the CLD and the CLD's Successors breached their fiduciary duties to the Plaintiff, and that both the First and Second Defendants are responsible for those breaches as pleaded herein.[160]
[160] SOC page 28.
No other relief is claimed 'against' the Crown Law Department, nor the SSO as a successor to Crown Law Department. However, the plaintiff pleads that:
39At all material times the CLD was an agent of the MRPA and the Second Defendant, and each of the First and Second Defendants is, and was, liable for any breach of any of the Fiduciary Obligations and/or the Continuing Fiduciary Obligations by the CLD and/or the CLD's Successors.[161]
[161] SOC [39].
And, Mr Bestry pleads as the 12th prayer for relief:
(12)Equitable compensation, alternatively an account of profits, for breach of fiduciary duty.[162]
The first basis
[162] SOC page 29.
Mr Bestry's essential contentions on this first basis are that:
1.in 1965, the then Crown Law Department owed fiduciary duties to at least the plaintiff and his mother;[163]
2.those fiduciary obligations continue to be owed to the plaintiff to the present day by the SSO as the CLD's successor;[164]
3.there is a real and sensible possibility that the SSO has a conflict of duties between its 'clients' - namely Mr Bestry and the State defendants;[165] and, so
4.consequently, the Court should act to restrain the SSO from continuing to act in these proceedings.
[163] Mr Bestry's submissions filed 14 March 2024 [36] - [37].
[164] Restraint application [G].
[165] Restraint application [I].
On this first basis Mr Bestry must show, at least arguably:
1.that Crown Law acted for him and, or, his mother to create a fiduciary obligation in 1965; and
2.that fiduciary obligation survives to the present day.
Mr Bestry contends in this part of his application for a retainer with Crown Law:
18.The Plaintiff would accept that, like all retainers, the nature of the retainer arising in these circumstances is not for all purposes. It is conditioned by what the CLD agreed to do on behalf of Mrs Bestry, the Plaintiff and her family and upon which they relied. That was to give effect to the Plaintiff's Request by drafting a suitable clause for inclusion in the 1965 Deed - so that if land was not used for the Designated Purpose it was subsequently offered for sale back to the members of the Bestry family identified for the purpose. The clause was to have multi‑generational operation.
19.It is no answer to the Plaintiff's application that his mother accepted the form of clause 7 by signing the 1965 Deed. Mrs Bestry was not a lawyer, she was unrepresented and in this context might be described as unsophisticated, she and her family relied upon the CLD (and the CLD were aware that they did so). Giving effect to the Plaintiff's Request was not a simple legal task because it involved multi-generational operation, however neither the Plaintiff nor his family had any input into the ultimate form of that clause, nor were they advised to seek independent representation they simply relied upon the CLD to give effect to the Plaintiff's Request.[166] (emphasis in the original)
[166] Mr Bestry's submissions filed 14 March 2024 [18] - [19].
On the material before the Court, I do not accept that a client/solicitor relationship was created by the Plaintiff's Request in 1965.[167]
[167] cf SOC [27].
I think it unlikely that the Plaintiff's Request as evidenced by the Crown Law file note[168] objectively had the effect that Crown Law began to act or had an obligation to act for Mr Bestry or his mother.
[168] The Note was 'RAGB-9' of Mr Bestry's second affidavit and reproduced in the third Rowley affidavit as part of 'LER-2' and is quoted in [37] above.
The mere fact that Mr Bestry made the Plaintiff's Request to Crown Law, which appears to have referred the request to the State, is not, arguably, sufficient to create a solicitor/client relationship without more.
Further, I note that there appears to be a disconnect or at least a lacuna in the pleading because at SOC [28] it is pleaded that Mrs Bestry received the defined Further Draft Sale Agreement 'by means unknown', but by SOC [31] it is pleaded that Crown Law presented the option in the Further Draft Sale Agreement.
I infer from those pleas that the plaintiff is factually unable to plead that Crown Law further communicated with Mr Bestry at that time about the Further Draft Sale Agreement, which became the 1965 Deed.
I have considered the 'relationship' between the Bestrys and Crown Law further in the event that I am wrong in concluding that no client/solicitor relationship was established before the 1965 Deed was entered into.
If I am wrong and Crown Law was acting for Mr Bestry, or his mother, in the preparation of the 1965 Deed, it is difficult to see what the content could be of any relationship following the execution of the 1965 Deed.
That is because there is no plea that cl 7 of the 1965 Deed miscarried. Rather, the plaintiff's pleas are to the effect that the 1965 Deed faithfully, by cl 7, met the Plaintiff's Request as pleaded in SOC [27].
With respect it is entirely unclear to me the basis on which it is asserted that Crown Law had some continuing obligation after the preparation of the 1965 Deed and its execution.
That is the second reason for my conclusion that it is unlikely that the plaintiff could succeed in establishing a continuing fiduciary obligation between Crown Law (or the SSO) and himself.
The third matter which, in my view, is fatal against there being any arguable, continuing fiduciary obligation owed Crown Law (or the SSO) to Mr Bestry flows from the following factual matters.
On 29 May 1967, Crown Law wrote to Mrs Bestry seeking a refund of part of the purchase money which had been paid to her pursuant to the 1965 Deed and the 1966 deed for the subject land. That letter stated, in part:
In addition, since the land taken is of a lesser area than that provided for in the later Agreement you are requested to forward a cheque for $8,156.25 being a refund of part of the purchase money, in accordance with the Clause 4 of that agreement. Particulars of how this figure is arrived at were given to you by the Under Secretary for Works in his letter of the 28th April, 1967.[169]
[169] 'CEF-29' at page 22 of the second Foster affidavit.
On 16 June 1967, Crown Law wrote to Mrs Bestry and in that letter stated:
Also you have not refunded the amount of $8,156.25 due to the Metropolitan Region Planning Authority following completion of the survey. Clause 4 of the Agreement between yourself and the Authority makes provisions for such an adjustment of the purchase price on completion of the survey.[170]
[170] 'CEF-29' at page 23 of the second Foster affidavit.
Crown Law wrote, again, on 10 July 1967 seeking repayment and stated that Crown Law held instructions to commence proceedings in this Court.[171]
[171] 'CEF-29' at page 24 of the second Foster affidavit.
There was then some further correspondence between Crown Law and Mr Bestry acting on behalf of his mother;[172] including Mr Bestry's letter to Crown Law on 22 August 1967.[173]
[172] 'CEF-29' at pages 25 - 29 of the second Foster affidavit.
[173] 'CEF-29' at page 27 of the second Foster affidavit.
On 20 December 1967, the MRPA, through Crown Law, commenced proceedings against Mrs Bestry in this Court by a writ indorsed with a statement of claim to recover the outstanding sum.[174]
[174] 'CEF-30' at page 30 of the second Foster affidavit.
It appears that on 2 January 1968, Mrs Bestry paid the claimed outstanding amount by cheque sent under cover of letter to the MRPA.[175]
[175] 'CEF-31' at page 34 of the second Foster affidavit.
How those proceedings were eventually disposed of is not apparent from the evidence before the Court.
It may be noted that in the correspondence concerning the repayment of the claimed sum neither Mrs Bestry nor Mr Bestry contended that the CLD (which was then clearly acting for the MRPA), was also then acting for, or had acted for, them.
Senior counsel for Mr Bestry submitted, as I understood it, that there being litigation 'about the sale price' with Crown Law acting for the MRPA did not stand in the way of a continuing fiduciary duty being owed to Mr Bestry in respect of cl 7(i) of the 1965 Deed.[176]
[176] ts 84.
With respect, if that submission was being put, I would not accept it. It seeks to draw an unsustainable distinction.
Rather, in my view, the absence of complaint in 1967 and 1968 suggests very strongly that the Bestrys at that time (being much closer in time to 1965, of course) did not consider that Crown Law had acted for them in 1965 or, at the least, was not continuing to act for them. It points strongly, in my view, to the assertions of a continuing fiduciary relationship being a much later confection.
If I am wrong in that characterisation, nonetheless what the events of 1967 and 1968 show is that Crown Law was not continuing to act for the Bestrys in relation to the 1965 Deed, or otherwise. So, any plea relying on a continuation of that fiduciary obligation in 2025 must, in my view, be doomed to fail.
As I understood Mr Bestry's position, ultimately adopted in the hearing, he accepted that on the first basis put, he relied upon there being an existing (to the present day) obligation on the part of the SSO.[177]
[177] ts 74 - 75.
For the reasons set out above, I do not consider that Mr Bestry's claim against the SSO is maintainable on this first basis.
The second basis
Mr Bestry also puts his restraint application on a second, separate basis.[178]
[178] ts 71, 72, 82.
Mr Bestry's submissions on this basis proceed on the basis that the current SSO has an 'interest' in defending the conduct of the CLD in 1965 such that the SSO's professional independence or detachment may now be compromised to the detriment of the proper administration of justice.
While it may readily be accepted that the Court is entitled to, and should require, disinterested legal representatives there must, nonetheless, be some substance to an apprehension or submission that a party's legal representative is not appropriately disinterested.
Mr Bestry faces an immediate and obvious difficulty from the more than 50 years' gap between the 1965 Deed and these proceedings. Unsurprisingly, and uncontentiously, the State defendants say that no lawyer who was at Crown Law in 1965 is currently employed by the SSO.
Nor, understandably, does Mr Bestry seek to point to any conduct on the part of the SSO from which it might be inferred that it was acting, or has acted, in these proceedings other than in the way the Court would expect and demand.
While Mr Bestry submits that the SSO's 'interest in the conduct of the CLD is self-evident'[179] it is, with respect, not self-evident to me when one has regard to the very significant gap in time (if for no other reason).
[179] Mr Bestry's submissions filed 14 March 2024 [83].
It is significant, in my view, that Mr Bestry's pleaded case turns, almost solely, on the basis that on a proper interpretation of cl 7(i) of the 1965 Deed the provided for 'use' was the Designated Purpose.
As I identified under the non-contract causes of action put by Mr Bestry, it is only the claim in unjust enrichment which may not stand or fall on the viability of Mr Bestry's contract case.
The effect of that is that almost all of Mr Bestry's case depends on a proper interpretation of the clause, rather than whether, for example, the parties' intentions had been carried into effect in the 1965 Deed. There is no plea on Mr Bestry's part for rectification, for example, of the 1965 Deed.
Unless there is a good reason, parties, including the State defendants, are generally entitled to the legal representation of their choice.
With great respect, it seems to me, in the present circumstances, that the second basis advanced by Mr Bestry is fanciful.
I would not, consequently, impose the restraint sought on either bases. I would dismiss Mr Bestry's restraint application.
The parties ought be able to agree orders, including as to costs, on Mr Bestry's application.
I will hear the parties, if needs be, on the form of final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
30 MAY 2025
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