Cameron v Milburn
[2013] VCC 832
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-12-03252
| ANGELA JOY CAMERON | Plaintiff |
| v | |
| DOROTHEA FLORENCE MILBURN | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4 and 5 June 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Cameron v Milburn | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 832 | |
REASONS FOR JUDGMENT
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Subject: ESTOPPEL
Catchwords: Proprietary estoppel – plaintiff the daughter of the defendant – defendant the surviving spouse of the plaintiff’s father – defendant the executrix of her husband’s estate – whether the plaintiff’s father made promises to confer on her an interest in a farm – whether the plaintiff relied on the promises – whether the plaintiff acted upon the promises to her detriment – whether the promises were uncertain or ambiguous – relief
Legislation Cited: Administration and Probate Act 1958
Cases Cited: Dillwyn v Llewelyn [1861-73] All ER Rep 384; Ramsden v Dyson & Anor (1866) LR1HL 129; Plimmer v Mayor of Wellington (1884) 9 App Cas 699; Giumelli v Giumelli (1999) 196 CLR 101; Riches v Hogben [1985] 2 Qd R 292; Donis v Donis [2007] VSCA 89; Harrison v Harrison [2011] VSC 459; Flinn v Flinn & Anor [1999] 3 VR 712; Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86
Judgment: A declaration that the defendant is estopped from denying the promises that the plaintiff’s father intended to confer on her an interest in a farm.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Gillies | SLM Law |
| For the Defendant | Mr M Harvey | Stratmann & Co |
HIS HONOUR:
Introduction
1 George Russell Milburn (“George”) inherited a farm property in a district known as Wando Vale from his father. It is a property comprising five allotments totalling 304.918 hectares or 750.35 acres. The residential address associated with the farm is 543 Casterton-Edenhope Road, Wando Vale. George’s date of birth is not disclosed in the evidence. He died on 22 April 2008 when he was eighty-one years of age. He must have been born in 1927.
2 Dorothea Florence Milburn (“Dorothea”) is George’s wife. She was born in February 1929. She was previously married. She had three children by her former marriage. Dorothea obtained a divorce from her first husband in 1957. She met George in 1963. They married on 6 December 1966. Dorothea is now eight-four years of age. She is retired.
3 At the time when George and Dorothea married, George was a farmer. Dorothea had trained as a nurse when she was seventeen or eighteen years of age, but I gathered that after marriage and having three children, that she ceased following that occupation. George and Dorothea had one child, Angela Joy Cameron (“Angela”), who is the plaintiff in this proceeding.
4 Angela was born in December 1969. She is now forty-four years of age. She married Craig Cameron (“Craig”) in December 2004. She has two children, namely, Cooper, who was born in September 2004, and Charlie, who was born on in July 2006.
The Proceeding
5 Angela was a student at Monivae College in Hamilton. She left school in the first semester of Year 10. At around that time she had an ambition to pursue a veterinary career as a veterinary surgeon, or if her academic achievements did not permit entry into that tertiary course, as a veterinary nurse.
6 Angela alleges that George and Dorothea wanted her to leave school and return to the farm. Angela said that her parents told her that she would be given the farm “at the other end” if she left school, returned to the farm and worked on the farm. The actual words which Angela alleges George used were “If you work on the farm you will get the farm at the other end”. She alleges that she left school and subsequently worked on the farm for twenty one years before there was a serious falling out with George and Dorothea largely due to her association and marriage to Craig.
7 Dorothea alleged that Angela approached her and George, raising the subject of her leaving school and returning to the farm. Dorothea said that she heard George say that the farm would eventually be Angela’s. She said that she never said those words to Angela. She denied that she heard George say the last part of those words, which I understood to mean that she did not hear him say “at the other end”.
8 Angela commenced this proceeding by Writ filed 9 July 2012. Essentially, her proceeding is based upon the words comprising a representation which she relied upon. She subsequently acted to her detriment by working on the farm for paltry wages. She said that George, and now Dorothea as the legal representative of George, is estopped from denying that the representation was made with the intention that she would rely upon it, and having acted to her detriment, that Dorothea is now estopped from denying that the farm should be transferred to Angela.
9 Dorothea denies that the words which she heard George say were intended by him to amount to a representation of the kind alleged by Angela. Otherwise, there was a contest regarding the extent to which Angela worked on the farm to her detriment.
10 The foregoing is sufficient to paint a brief picture of the background to this proceeding.
11 Mr Gillies of Counsel appeared for Angela. He called the following evidence:
· Angela, who was cross-examined;
· Elizabeth Anne Gheller, who was cross-examined; and
· Jaynel Louise Pinkerton, who was not cross-examined.
12 Mr Harvey of Counsel appeared for Dorothea. He called Dorothea, who was cross-examined.
13 The parties tendered the following documents:
· An agreed statement concerning the evidence of Craig: Exhibit A;
· A two-page map of the farm: Exhibit B;
· Handwritten notes of the eulogy given at George’s funeral: Exhibit C;[1]
[1]Initially identified as Exhibit 3. For the purpose of continuity, I have remarked the exhibit ‘Exhibit C’ because it was a document tendered by Mr Gillies as part of Angela’s case
· The parties prepared a Joint Court Book (“CB”) comprising two volumes from which they tendered: pages 2.1-2.31; 3.1-3.15; 4.1; 5.1-5.50; 6.1-6.2; 6.4-6.7; 7.1-7.92, and 7.258-7.268: Exhibit 1;
· A letter from Hunter Newns, solicitors, to Craig dated to September 2005: Exhibit 2; and
· A synthesis of the Angela’s income from 1990-2005: Exhibit 3.[2]
[2]Initially identified as Exhibit 4. For the purpose of continuity, I have remarked the exhibit, ‘Exhibit 3’ because Exhibit 3 has been re-marked ‘Exhibit C’
14 Mr Gillies applied to tender other documents from the Court Book, namely, pages 2.55 - 2.59, 2.73 and 2.74. Mr Harvey objected to the tender of those documents. I will refer to the grounds of the objection later in these reasons. I reserved my ruling on the admissibility of those documents in order to consider the transcript of the evidence, and after reading the tender documents from the Court Book to determine where the objected documents fit into the matrix of facts contended for by Angela and Dorothea.
Angela’s Evidence
15 Angela attended Monivae College in Hamilton until first semester in Year 10. She had an ambition to enter the veterinary industry either as a veterinary surgeon or as a veterinary nurse.
16 She submitted it was during her school years, but mainly when she was in Year 10, that George and Dorothea said to her that she would always be given the farm at the end if she was to leave school and come home and work on the farm. The plaintiff's precise evidence about that was:
Q: “Now. Before you left school, was anything said to you by your mother or your father about leaving school?---
A: Yes, they said that I would always be given the farm at the end – at the other end. If I was to leave school, come home and work the farm.”[3]
[3]Transcript 15
17 Angela said that the conversation occurred in her first semester of Year 10, which was in approximately 1985. She left school and returned to the farm. She said that the statement was repeated after she returned to the farm:
Q:“Now, when you came back to the farm, was that repeated to you again and said to you again?---
A:Yes.
Q:In what circumstance was that repeated to you?---
A:Quite often when I used to ask for higher wages, the subject was brought up and said I would get it at the other end, so I wouldn’t get anymore raise in my wages.
Q:Whereabouts would that conversation take place?---
A:At the kitchen table in my dad’s house.
Q:Would your mother be present too?---
A:Always.
Q:Did she ever disagree with what your father said?---
A:No.”[4]
[4]Transcript 15
18 Angela described her father as suffering from a physical disability. He had suffered from polio, which she said affected him when undertaking physical jobs on the farm, such as dagging sheep and shearing sheep. She said she caught the sheep and tipped them up for him so that he could dag the sheep. She said he was also limited in doing a lot of cattle work such as marking calves, dehorning cattle and doing heavier tasks.
19 Angela described the work she performed on the farm in some detail. In summary, she said she did the following:
· She undertook animal husbandry with sheep, such as trimming their feet; shearing; culling sheep; shearing; shearing the tail end of the mob of sheep; crutching; dagging; dipping, and any other tasks that needed to be done with sheep. The farm ran about 800 sheep. Crutching occurred once a year. She did not crutch the whole mob of sheep every year, but there were a few years when she did them all. The crutching she did took a couple of weeks.[5]
[5]Transcript 16
· When crutching, she would drag out the sheep which weighed 60 to 80 kilograms, tip them over in a pen and drag them out, take the wool from around the pizzle, crutch up, in and around the legs and bottom of whethers and tip them out and then drag them over the board.[6]
[6]Transcript 16
· When George brought in a shearer she would act as rouseabout mustering sheep, dagging and preparing them for shearing. She would press the wool and skirt the fleece and shear any sheep the shearer did not get through.[7]
[7]Transcript 17
· She plucked wool from dead sheep. Once a year there would be up to three dead sheep from which she would pluck off the wool.[8]
[8]Transcript 18
· The farm ran about 200 cattle. She would muster the cattle from paddocks into yards. She would put the cattle into a crush where they would be drenched by mouth, needle or back liner. She explained that back liner involved pouring back liner along the back of the cattle. Injecting involved giving the cattle an injection behind the ear on the hard part of the neck. She said that the vet retained by George preferred drenching by mouth. Drenching occurred two to three times a year over three or four days. She also de-horned cattle which took about four half days a year. She castrated young cattle, doing about two mobs of 60 cattle on consecutive afternoons.[9]
[9]Transcript 18 and 21
· She used a disc and harrow on the paddocks, no doubt behind a tractor. George did the ploughing and sewing crops.[10]
[10]Transcript 18
· She removed a weed known as ‘Fat Hen’ from a paddock of 7 to 10 acres sown with lucerne. She was given a pair of pliers by George to pull the fat Hen Out. She described it as backbreaking work which was done once a year.[11]
[11]Transcript 18-19
· She cleaned the dams of fungus from the surface of the dams. She used a device in the shape of a tennis racket to scoop the fungus up. She described the fungus as “wet and heavy”. Once scooped up it was placed at the side of the dam.[12]
[12]Transcript 19
· One of the allotments comprising the farm was known as Olive Grove. It comprised 109.4 hectares or 270.33 acres. She said that there was a steep hill on that allotment. She used a crowbar to dislodge rocks which rolled off down the side of a hill. She would then go and pick them up using a utility motor vehicle and put them around the water troughs to prevent the cattle from bogging the mud around the water troughs, to prevent cattle from bogging up areas around gateways, and she put rocks in a range of other areas on the farm. This was done yearly.[13]
[13]Transcript 19
· She dug post holes which was done the old-fashioned way by using a crowbar and a spade. George did not permit it to be done using a posthole digger.[14]
[14]Transcript 19-20
· She cut grass off electric fences using handheld hedge clippers. The electric fences were kilometres in length. She had to cut both sides of the fence line. In the last year that she undertook that task George purchased a Whipper Snipper.[15]
[15]Transcript 20
· She cut and raked hay, presumably using a cutting machinery. George got in a contractor to do the hay baling. She, George and Dorothea carted what she described as “little squares” which they would stack up. The cutting, raking and baling was undertaken during summer. Because of the heat of the day, it was done a bit at a time. The carting of the “little squares” was done a week at a time.[16]
[16]Transcript 20
· She operated the farm tractor carting, raking, harrowing, slashing, feeding cattle and sheep, and using it to break fence posts and pull them out.[17]
· She cut wood using a chainsaw. She used a spade to dig drains in paddocks. She did that every year.[18]
[17]Transcript 20
[18]Transcript 21
20 Angela said that she worked for twenty one years on the farm after leaving school. She estimated that she worked 35 hours per week at a minimum, and seven days a week at a maximum.[19]
[19]Transcript 21 and 64
21 Although there was little evidence about what George did on the farm, it was my strong impression that George was committed to working on the farm, and did so full-time. Angela said that the Dorothea did very little on the farm. Angela did not work with Dorothea on the tasks which she said she did on the farm. The only work which Dorothea did was skirting wool in the shearing shed, cooking for the shearer, George and Angela, and undertaking some hay carting.[20]
[20]Transcript 21
22 Angela said that she was paid very little for the work which she says she did on the farm. She was paid $50 per week for about five years; between $50 and $75 for the next five years; $100 for about the next nine years, and in the last two years of the twenty one years she worked on the farm she was paid up to $200 per week.[21]
[21]Transcript 15-16
23 Angela secured other work off the farm between 1990 and 2005. It is best demonstrated by a table produced by Mr Harvey. The table was prepared by reference to the plaintiff’s taxation returns.[22] It as an accurate demonstration of the income the plaintiff earned in each financial year and the persons who employed her.
[22]The plaintiff's taxation returns for the years ending 30 June 2004 to 30 June 2005 are at CB 7.1-7.92. I have included the table as tendered, together with the Court Book references included by Mr Harvey.
Angela Cameron’s taxable income and sources 1990 to 2005
Financial Year Total Taxable Income $ Taxable Income $ Source Period 1990 CB:7.3 12,577
- - - 1991 CB:7.3 6,080
- - - 1992 CB:7.3 15,861
- - - 1993 CB:7.3 13,901
- - - 1994 CB:7.3
14,91513,030 Old Penola Pastoral Co
CB:7.8 - - 1,507 Sharefarmers Pty Ltd
5 March – 18 April 1994 CB:7.7 - - 171 Southcorp Wines Pty Ltd
21 April – 22 April 1994 CB:7.7 - - 207 Total income from partnership
- 1995 CB:7.12
12,1438,389 Old Penola Pastoral Co
CB:7.3 - - 2,450 Petaluma Ltd 1 July 199[4] – 30 June 1995 CB:7.13 - - 312 T A & B R Tomkins
17 Oct – 21 Oct 1994 CB:7.14 - - 1,001 Total income from partnership
- 1996 CB:7.17
8,4852,225 Petaluma Ltd 14 Mar – 10 May 1996 CB:7.16 - - 6,260 Total income from partnership
- 1997 CB:7.22
12,48410,787 Petaluma Ltd 3 July 96 – 30 June 97 CB:7.26 - - 255 Highbank Vineyards
March 97 CB:7.27 - - 126 Wando Estate
14 Feb – 30 June 97 CB:7.28 - - 45 Greater Green Triangle
- - - 1,271 Total income from partnership
- 1998 CB:7.30
16,77016,386 Petaluma 1 July 97– 30 June 98 CB:7.32 - - 384 Total income from partnership - 1999 CB:7.44
15,51715,171 Petaluma 1 July 98 – 30 June 99 CB:7.42 - - 270 JR & EC Kay
15 May – 15 June 99 CB:7.42 - - 70 The Hamilton Wine Group
22 April – 30 June 99 CB:7.43 - - 6 Total income from partnership
- 2000 CB:7.56
10,6617,930 Petaluma 1 July 99– 30 June 00 CB:7.53 - - 793 JR & EC Kay
1 July 99 – 30 June 00 CB:7.54 - - 66 Wando Estate
“various” CB:7.54 - - 1,600 West Cuyvac Pastoral Co
1 May – 30 June 00 CB:7.55 - - 272 Total income from partnership
- 2001 CB:7.65
10,1869,565 West Cuyvac Pastoral Co
1 July 00 – 30 June 01 CB:7.62 - - 621 Total income from partnership
- 2002 CB:7.74-75
7,0773,840 West Cuyvac Pastoral Co
1 July – 11 Dec 01 CB:7.68 - - 131 Monica Smith Shearing
17 April 2002 CB:7.69 - - 1,210 Munthah Partnership
10 May – 30 June 02 CB:7.70 - - 1,120 SJ & SL Hindson
1 April – 30 June 02 CB:7.71 - - 130 JR & EC Kay
15 Sept 01 – 30 June 02 CB:7.72 - - 471 Satimer Merino Stud
1 Jan – Feb 2002 CB:7.73 - - 7 Allowances, benefits, etc
- - - 168 Total income from partnership
- 2003 CB:7.265-6 14,993 6,418 SJ & SL Hindson
1 July 02 – 30 June 03 CB:7.261 7,559 Jari E Hryckow
CB:7.263 - - 1,016 Total income from partnership
- 2004 CB:7.84-5 10,187 2,940 SJ & SL Hindson
1 July 03 – 30 June 04 CB:7.82 - - 6,878 Jari E Hryckow
1 July 03 – 30 June 04 CB:7.83 - - 369 Total income from partnership
- 2005 CB:7.88-9 2,293 2,293 Total income from partnership -
24 Angela described the other work off the farm, but not in the same degree of detail as is demonstrated by the table.[23]
[23]Transcript 21-23
25 Angela met Craig in 2001. They married on 4 December 2004. Initially Craig got on well with George and Dorothea. However, according to Angela, Dorothea precipitated a dramatic and serious breakdown in his relationship with George and Dorothea. She said:
Q:“Did your father and mother get on with Craig Cameron?---
A:For a short while they did but after that no.
Q:You finished working at about what time on the farm?---
A:2005, approximately around August.
Q:What were the circumstances of your finishing work at the farm. Was there a trigger point or a flash point? Was there some incident?---
A:Conflict with my dad not liking Craig and my mother was saying lies about my husband so I chose to leave. I was put in a position where I had to choose dad and the farm or Craig and my family. I was told that I would not get what I was always owed if I left.
Q:Who said that to you?---
A:My father.
Q:Were you pregnant at that time?---
A:Yes.
Q:What happened at that time to the pregnancy?---
A:I lost my baby.”[24]
[24]Transcript 23
26 George, Dorothea and Angela entered into a Deed of Partnership dated 17 May 1989 by which they were to carry on business as primary producers in partnership on at Wando Vale under the name and style of “G.R.,D.F. & A.J. Milburn”.
27 According to Angela, as a result of the breakdown of the relationship between George and Dorothea with herself in 2005, George served a Notice of Dissolution of the partnership on her.[25] However, that does not appear to be so, because Angela filed a proceeding in the Magistrates’ Court at Hamilton by a Complaint endorsed with a Statement of Claim which was later amended. By paragraph 6 of the Amended Statement of Claim, Angela alleged that in or about mid September 2005, George determined the partnership by leaving a voicemail message for Angela informing her that the partnership was at an end, and that she was to remove sheep from the farm. It was on that basis she alleged in paragraph 7 that the partnership had been determined.[26]
[25]Transcript 23
[26]CB 5.29-5.34
28 George and Dorothea filed a Defence which denied the allegations contained in paragraphs 6 and 7, but admitted that the partnership had been determined on or about 3 October 2005 by George, for himself and for Dorothea, by leaving a voicemail message on that day for Angela informing her that the partnership had been determined.[27]
[27]CB 5.36-5.40
29 The proceeding settled. George and Dorothea paid Angela the total sum of $84,649 inclusive of costs. The settlement was reduced to a Deed of Settlement and Release executed by each of them on 29 June 2007.[28]
[28]CB 5.47-5.49
30 The relationship between Angela, George and Dorothea remained distant. George fell ill. He was admitted to a hospital shortly before he died on 22 April 2008. It would appear that he was admitted to a hospital in Melbourne, and later transferred to a hospital in Hamilton. Angela visited him while he was an inpatient in hospital. She said she reconciled her differences with George before he died. Before George died, she went and stayed on the farm with Dorothea for about two months and worked on the farm.[29]
[29]Transcript 29-30 and 32
31 Angela did not make a claim on George’s estate pursuant to Part IV of the Administration and Probate Act 1958. Her reasons for not doing so are as follows:
Q:“When your father died did you make any claim against his estate?---
A:No.
Q:Why did you not do that?---
A:Because my mother told me she was going to leave the farm to me and do the right thing and I believed her.
Q:When did she say that?---
A:She said it after my father passed away and she said it for years until we ended our relationship.
Q:Whereabouts did she say it? Are you able to say?---
A:She said it to me on the phone and she said it to me in her house in Wando Vale.
Q:When abouts in the year did she say that? Are you able to say?---
A:Shortly after my father died, so 2000 – sorry, I need a bit of time. Shortly after my dad passed away on 23 August.”[30]
[30]Transcript 24 and 47
32 Dorothea obtained probate of George’s estate in October 2008. Angela discovered that Dorothea intended to sell the farm. She subsequently lodged a Caveat on the titles to the farm dated 9 May 2012 .[31]
[31]CD 4.1
Cross-Examination of Angela
33 The impression I was left with following the examination-in-chief of Angela was that she had a reasonable relationship with George and Dorothea which was detrimentally affected by her relationship and ultimate marriage to Craig. However, the cross-examination created a different impression.
34 Mr Harvey commenced his cross-examination of Angela rather colourfully, putting to her that she was given to using very profane language when she spoke to George and Dorothea. The following exchange occurred during cross-examination:
Q:“Ms Cameron, did you ever call your parents, ‘You are a pair of fucking bastards’?---
A:Yes I did.
Q:When did you call them that?---
A:When they gave me the ultimatum of my family for them and the farm.
Q:Did you say to them that ‘you are just up each others’ arse’?---
A:No.
Q:You never said that to you parents?---
A:No.
Q:Did you call them, did you say to them, ‘You are just a pair of cunts’?---
A:No.
Q:Your mother is going to say that you used each of those three expressions to her and your father in that period about August 2005. What do you say to that?---
A:I say that is not true.
Q:You frequently used vulgar and threatening language to your parents, didn’t you?---
A:Language, yes, as I admitted to you before. But not the second bit.”[32]
[32]Transcript 35
35 The profane language which Angela admitted she used occurred during a confrontation between George and Dorothea and Angela on 21 August 2005 when Angela and Craig visited the farm. It was in the setting of frequent clashes between George and Angela regarding the running of the farm. George told Angela that he did not want Craig working on the farm. It was during that conversation that Angela called George and Dorothea “fucking bastards”. Angela said that Craig was not there at the time that exchange occurred.
36 Angela denied that George and Dorothea were afraid of her, and that on that day, they locked themselves in their house. She said that there was an occasion when they were in the house and apparently would not come out, which was an occasion when Craig paid them a visit.
37 Angela denied that at the end of the confrontation and the exchange, that either she or Craig removed the keys from the car owned by George and Dorothea before they drove away in the car.[33]
[33]Transcripts 37-38
38 Subsequently, George and Dorothea instructed solicitors to write to Craig by letter dated 2 September 2005. It reads:
“We act for George and Dorothea Milburn of Wando Vale.
Our clients have instructed us to indicate to you that they do not wish you to attend at the home or enter upon any land owned by them jointly or individually. Further, our clients do not wish to have any contact from you whatsoever as a result of recent conduct by you which they have found of a highly harassing nature.”[34]
[34]Exhibit 2 and Transcript 37-38
39 What is clear is that for nearly the next two years, Angela did not work on the farm, and only returned when George was hospitalised for a period of about two months or so.
40 Angela said that Craig abided by the content of the letter and made no contact with George or Dorothea. She said that she had tried to make peace with George and Dorothea from the time they formed a belief that Craig was after the farm. She said it got to the point where she simply gave up trying to make peace with them.[35]
[35]Transcript 38
41 Angela was taken to George’s Will made 24 August 2005, and in particular to clause 3 which reads:
“I RECORD that I have not made provision to my daughter ANGELA JULIE MILBURN from my estate because-
a. my said daughter has been disrespectful to me and has not shown me the care and affection to which I believe I am entitled;
b. Her conduct towards me over the period of 20th and 21st August 2005 has been abusive and has caused me considerable anxiety and stress;
c. The incidents which took place on the date set out in paragraph 3b were the culmination of a lengthy period during which her conduct towards me has disappointed and distressed me in the extreme; and
d. I have already provided substantial financial assistance to her during her lifetime.”[36]
[36]CB 2.15-2.16
42 Angela was asked what she thought George meant in subclause (c) when he referred to a lengthy period of time over which her conduct had disappointed and distressed him. Angela said that she had several fights with her father. She said that the last twelve months was terrible. In the context in which that answer was given, it would appear she meant the twelve months prior to 21 August 2005. She said that she fought with Dorothea because of what she alleged was Dorothea’s constant lying, and she fought with George over wages. There were other fights over what she described as “bits and pieces”, but none of those fights were major fights.[37]
[37]Transcript 41
43 It was not long after August 2005 that Angela told Dorothea that neither she nor George should contact her, Craig or their children. She told George and Dorothea that she was moving to Kilmore. What followed was the proceeding filed in the Magistrates’ Court at Hamilton on 7 July 2006.
44 Angela was asked about clause 3(d), and the financial assistance provided to her by George as follows:
Q:“Then he says at 3(d), ‘I have already provided substantial financial assistance to her during her lifetime’. What does he mean by that?---
A:I don't actually know.
Q:You can honestly say to His Honour that you do not know what financial assistance he's referring to?---
A:Not substantial financially assisted, no.
Q:I didn’t ask you about substantial, I asked you about financial assistance, didn’t I?---
A:He assisted me with vehicles.
Q:How many vehicles did he assist you with?---
A:He bought me my first car and he helped with a couple of utes.
Q:First car. What was that?---
A:A little Nissan Pulsar.
Q:Nissan Pulsar?---
A:A little hatchback.
Q:What other cars did he help you with?---
A:He helped me with a Commodore.
Q:Commodore, yes?---
AHe also helped me with my first Commodore, I paid him back the money from the vineyards. I paid him back in full, 10,000 for that one but he insisted me after that to trade that one to another car.
Q:What did you trade that in for? ---
A:A Commodore a couple of years newer. I worked full-time on the farm then so I worked it off in hours and he helped me with – he gave me after that Commodore, he gave me a second-hand farm ute which was a Mitsubishi Triton and I sold my Subaru ute previous to that and paid for half of that Triton in cash, for the Triton.
Q:Is that the only financial assistance that you were given by your parents?---
A:He used to pay my dental bills and my doctor bills which were minimal.
Q:Yes?---
A:At one stage he paid my rent for a few months when I was in between houses.
Q:Was that when you were living at (indistinct)?---[38]
A:Yes.
Q:You think that when he refers to substantial financial assistance that’s what he’s referring to?---
A:Yes.”[39]
[38]The Transcript was corrected to read "at Noss"
[39]Transcript 41-42, and 81
45 Ms Betty Sherry delivered the eulogy at George's funeral. Angela provided instructions for the eulogy which someone else reduced to writing. It was given to Ms Sherry. I will set it out in full because both Mr Gillies and Mr Harvey relied upon it in aid of the submissions they made on behalf of their clients:
“ Perhaps the person who could tell us the most about George is his daughter Angela, who spent a great deal of her life working with him on the farm that they both loved to work on.
George believed in hard work and didn’t spare Angela where this was concerned. He gave her many laborious jobs to do. One such occasion was when he sent her into the paddock with a pair of plyers (sic) to pick fat hen weed out of the lucerne crop.
She knew what it was to pick up 12 months of horse droppings out of a paddock with a wheelbarrow and shovel, to skim [clear] fungi off a dam with an implement similar to a tennis racket with a mesh end. After finishing the perimeter of the dam, Angela would wait till the wind pushed the fungi from the centre of the dam to the edge so she could reach it. Not to mention the many hours spent clearing the long dead grass along the electric fence with the hedge clippers. He did eventually invest in a whipper snipper.
There are many such stories, too numerous to mention [and] but Angela will always be appreciative of the values of farming George has left her with and [will carry out his wishes that she continued to work] abiding love for his beloved farm.”[40]
[40]Exhibit C
46 The words in square brackets were crossed out. The words in italics were substituted.
47 Angela said that the eulogy was read out except for the words in the square brackets in the last paragraph, and that the words in italics were substituted. It was put to Angela that the part of the eulogy referring to her continuing to work his beloved farm was wrong, because she left the farm in December 2005 and did not work on it again. She admitted that she had not worked on the farm for about two years, but she did go and stay with Dorothea for about two months before George died and worked the farm. She said:
“I worked there for two months before my father died. I stayed with my mother. I worked there for two months. My dad told me in hospital and held my hand, ‘I know you’re so capable of running this farm and that all our fighting’s been silly,’ and he believed in me and he wanted me to carry out his wishes.”[41]
[41]Transcript 46
48 She admitted that she fought with George over how the farm was to be run. It was put to her that if what was in the eulogy was correct, then how could she run the farm in the way George wanted it to be run if there was such a level of disagreement about the way he ran it. She said she would have only changed some simple things. It was then put to her that the eulogy was a deliberate fabrication of the actual nature of the relationship she had with George and Dorothea. She denied that was so.[42] However, the evidence of Dorothea is in stark contrast to the eulogy being a deliberate fabrication, and indeed, she agreed with the substance of what the eulogy conveyed about Angela’s relationship with George.[43]
[42]Transcript 47-48
[43]Transcript 163
49 Angela’s solicitors, and on her instructions, wrote a letter dated 17 May 2013 to Dorothea’s solicitors. The contents of the letter were described as an open offer. It was put to Angela that part of it was inconsistent with her evidence that the representations said to be made by George that she would get the farm at the other end. The relevant part reads:
“We are instructed that our client made peace with her father prior to his death and that he was to alter his Will so as to ensure that the farm would be passed to our client or at least her children as we understand it was his desire to see his grandchildren brought up on the farm. Unfortunately, he did not get to alter his Will prior to his death. Our client then relied upon representations made by her mother that the land was to be held on trust for our client’s children which is why our client decided not to contest her father’s Will. We have witnesses who will attest to this at trial and who will also say that it had been represented to her by your client that the farm was to go to our client or her children and that your client was holding the farming land on trust.”[44]
[44]CD 6.4-6.7
50 Angela admitted that Dorothea said to her that the farm would be held on trust for Angela’s children. When it was put to her that the reason she gave for not contesting George’s Will was because of the representation that she would get the farm at the other end, but that she had not put that in the letter, she added that she had forgotten about the representation when she gave instructions for the letter to be written. She denied that the content of the letter which I have quoted had been made up.[45]
[45]Transcript 49-52
51 Angela included an article from the now-defunct Truth newspaper in her Affidavit of Documents. The article concerns Dorothea’s divorce from her first home husband, Mr Harry Wookey.[46] It was put to her that the article was produced by her to put a gun to Dorothea’s head to make her hand over the farm. Angela denied that was the purpose for including the article in her Affidavit of Documents and also in the Court Book. She added that she knew it was deeply hurtful to Dorothea and that she regretted bringing up. She had obtained the article from her half-sister, Mrs Geller.
[46]CB 6.1
52 I have read the article, and also the authorised report of the divorce proceeding.[47] It contains nothing of any relevance to this proceeding. I think it is shameful that a petition for divorce heard in 1957 has been brought up in this proceeding. There can only be one reason why it was brought up, and that is, to not only hurt Dorothea, but to encourage her to settle this proceeding favourably to Angela. It was almost admitted by Angela that its purpose was to demonstrate that if she lied in 1957, that she is lying about the representation made by George. Angela’s answer was that Dorothea lies all of the time and that is why the article was put in her Affidavit of Documents and in the Court Book.[48]
[47]Wookey v Wookey [1958] VR 369
[48]Transcript 54-55
53 Angela said that George said the words “If you work on the farm you will get it at the other end”. She said her mother was present when the words were spoken, and never disagreed with George. It was put to her that paragraph 9 of her Statement of Claim attributes those words to both George and Dorothea. The two answers are clearly contradictory. At the end of that passage of cross-examination she said that Dorothea did say those words. She said:
Q:“Did she say the words or did she not say the words?---
A:She said the words.
Q:With the two answers that you've given to His Honour, one that she didn't say the words and one that she did say the words, which one of those two answers is false?---
A:Pardon?
Q:Whether she said the words is one answer, she said the words?---
A:Yes.
Q:The other answer is that she did not say the words, which - - -?---
A:Not - - -
Q:Just let me finish the question. One answer was that she did not say the words and the other answer was that she did say the words - - -?---
A:She said - - -
Q:Which of those two answers is false?---
A:She did say the words. She did say with my father but my father was the main one that said it.
Q:When you said to His Honour that she did not say the words, that was a false answer?---
A:She did say the words, I’ve got muddled, sorry.
Q:When you said to His Honour that she did not say the words, because that was your evidence, that was a false answer, wasn’t it?---
AIt sounds like a false answer, yes, but she was in agreement with my father, they both sat there and spoke for each other.
Q:That’s your answer to His Honour, is it?
A:Yes.”[49]
[49]Transcript 58-59
54 Angela admitted that there was no evidence which she could produce to support the evidence she gave that the representation was made by both George and Dorothea. She admitted that she could not specify a date on which the representation was made nor how many times it was made, except to say that it was made frequently and throughout her life, and that it was made at the kitchen table where things were discussed.[50]
[50]Transcript 59
55 Angela was cross-examined at some length from her taxation returns to demonstrate that the table produced by Mr Harvey accurately summarised the income which she earned between 1990 and 2005.[51] It was put to her that she did little or no work on the farm between 1984 and 2005 because her taxation returns demonstrate that she was working off the farm for significant periods of time and for a number of employers, and that she did not work on weekends. She denied that the latter was so.[52] Otherwise she did not contest the accuracy of what the table demonstrated.
[51]Transcript 60-80
[52]Transcript 84
56 Angela admitted that she obtained what I will loosely describe as benefits from her parents:
· She did not pay board when she lived at home.
· She did not pay for meals when she lived at home.
· The registration on her cars was paid from 1995 to 2005.
· The insurance on her cars was paid between 2000 and 2004.
· Her ambulance subscription was paid from 1995 to 2005.
· Occasionally she was provided with a tank of petrol, but not after she was about twenty-one years of age.[53]
· Her rent was paid from early 2002 on a property she occupied in Casterton for about six months .[54]
[53]Transcript 80-82
[54]Transcript 76 and 80
57 Angela denied that it was her decision to leave school. She denied that she spoke to Dorothea and told her that she did not want to return to school. She denied that Dorothea wanted her to stay at school. She denied that George wanted her to stay at school. She denied that it was as a result of her insistence that she leave school that George and Dorothea gave in.[55]
[55]Transcript 56-57
Angela’s Witnesses
58 The plaintiff called Ms Pinkerton.[56] She met Angela in 1990 when she was about seventeen years of age. At that time she was living in Casterton. She said that Angela came and stayed at her home between 1990 and 1991. She was aware that Angela was working on the farm and also doing some other work on vineyards.
[56]Transcript 106-110
59 Ms Pinkerton said that Angela stayed at her home a couple of Saturday nights each month. On a number of Sunday mornings George would ring and ask her to return to the farm to do work. She said that Angela always went home when those calls were received from George.
60 Ms Pinkerton said that Angela was respectful of George. She saw Angela working on the farm, and it appeared to her that she was a hard worker. She described George and Dorothea going on a holiday to Robe in South Australia. On some of those occasions Angela remained on the farm. She stayed with Angela on those occasions. Angela would stay on the farm on weekends during those occasions.
61 Ms Pinkerton said that Angela always seemed to be short of money. She, Angela and other friends used to put money together to buy petrol to be able to drive around town, but I assume that means Casterton.
62 The plaintiff called Ms Gheller. She is the daughter of Dorothea by her first marriage.
63 Ms Gheller said that she visited the farm annually and would stay for about a week at a time. She said she spoke to her mother at least three, and sometimes four times a week. One of the subjects on which they spoke was Angela’s role working on the farm. She said that Dorothea told her that when George passed away that Angela would run the farm.
64 After George’s death they spoke about Dorothea's stated intention to sell the farm and move into Casterton. Ms Gheller responded by saying that Dorothea could not sell the farm because it was meant for Angela. She said that conversation occurred about eighteen months to two years ago. She said that over a period of ten years or so she conversed with Dorothea and George on the subject of them moving into Casterton and Angela remaining on the farm.[57]
[57]Transcript 92-94
65 Ms Gheller said that she observed Angela when she visited the farm. She said that Angela worked extremely hard on the farm, and she observed her doing casual work, fencing, sheep work and tractor work.[58]
[58]Transcript 93
66 Ms Gheller said that she had specific conversations with George about Angela running the farm. She said those conversations occurred as George was getting older, and perhaps the conversations occurred over the last ten years or so, and I assume she meant over the last ten years or so of George’s life. The conversations occurred in the lounge room of the house on the farm at night. She said that George described Angela as a great worker. He told her he had no qualms with Angela running the farm one day.[59]
[59]Transcript 95
67 Ms Gheller said that she observed Angela working on weekends. She said she visited, arriving on a weekend and leaving the following weekend. She said she observed Angela ask George what work he had lined up for her to do that day, and presumably after being informed of what worked there was to be done, she said Angela would go out and do it.[60]
[60]Transcript 96
68 Mr Harvey cross-examined Ms Gheller. She admitted that she was not happy with Dorothea defending this proceeding. She admitted seeing Dorothea in September 2012 in company with her husband, John. She admitted informing Dorothea about the article in the Truth newspaper. She said she obtained it by searching through the State Library newspaper archives.
69 Ms Gheller denied that she was motivated to encourage Dorothea to settle this proceeding. She said, however, that she thought that the article would give the Court a good indication of Dorothea’s character. I do not think there can be much doubt that what Ms Gheller intended to convey is that Dorothea is a liar.[61]
[61]Transcript 97
Dorothea's Evidence
70 Dorothea said she was born in February 1929. She was first married in June 1949. There were three children of that marriage. The marriage ended in divorce in 1957. In 1963, she met George. They married in December 1966. They lived on the farm. Angela is the child of their marriage.
71 Dorothea described George as having an extremely good work ethic and being a good farmer. He was 6 foot 2 inches tall and had a wiry physique. She denied that George was unable to do some farm work. She said that he had suffered polio which left him with one leg slightly shorter than the other. It resulted in George limping, but otherwise did not affect him in any way, and certainly not in his work on the farm.[62]
[62]Transcript 111-112
72 Dorothea said that Angela wanted to leave school. She said Angela spoke to her about that on the Queen’s Birthday weekend in 1985. Dorothea said that she wanted her to remain at school, but Angela was adamant that she wanted to leave. Angela then spoke to George, who was in his bedroom where he was reading. He told Angela that he did not think she should give up school, but again Angela was adamant that she wanted to leave school. George then said to Angela that he did not want her to blame he and Dorothea in later years for leaving school.[63]
[63]Transcript 113-114
73 Dorothea said she heard George say that the farm would eventually be Angela’s, but she denied that he said if you work on the farm you will get the farm at the other end.[64]
[64]Transcript 114
74 Dorothea said that Angela worked on the farm from about 1985. She tried hard, but she mostly liked working on her own. She described her work ethic as not perfect. Her relationship with Angela was not good. Angela was very difficult and had a temper. Dorothea said Angela’s relationship with George was quite good, but they used to argue. She described the arguments as amounting to fighting. She described the frequency of fights as being quite often.[65]
[65]Transcript 114-115 ,117, and 121-123
75 Angela first started working, after she left school part-time, at a milk bar known as Newman’s in Casterton in 1986. Dorothea drove her to work. Angela was then working three days a week at the milk bar.[66]
[66]Transcript 115
76 Once Angela obtained her driver’s licence and a car, she went out a lot on weekends. She was given a car on her eighteenth birthday in 1987. She did not like working on weekends, and seldom worked on weekends. She worked on weekends when there was shearing to be done. Shearing usually extended over a week to eight days. She worked at a number of vineyards in the Coonawarra district in South Australia. In one year she worked full-time in vineyard work, and it was Dorothea’s estimate that she worked five days per week. She agreed with Angela’s evidence that the vineyard work was seasonal which would see her work six, seven or eight months per year. She was paid for her work on the farm, board was provided, meals were provided, and petrol was provided for some time.[67]
[67]Transcript 115,118
77 Angela was given money by Dorothea and George. She would ask for money so that she could go out. Dorothea said that she herself did not have a lot of money. She said that Angela could have asked her for money. She helped Angela out financially as much she could. Angela was living at home until about 2000, after which she lived on a pastoral property known as Kuyuac. She lived there until about 2002.
78 When Angela finished working at Kuyuac she discussed returning to the farm with Dorothea and George. Dorothea said that she discussed that with George. They refused to allow Angela to return to the farm to live. She said that they made that decision because Angela was very difficult to live with. She said Angela was very bad tempered and at their age they wanted some peace and quiet. Angela moved to a property at Noss where she commenced living. George and Dorothea paid her rent.
79 Angela married Craig on 3 December 2004. He had no involvement with the farm. Dorothea said that her relationship with Craig was not good. She considered him to be an interfering person because he wanted to know about the farm; he wanted to do things on the farm, and he had said some cruel things to George.[68] She referred to two occasions when Craig attended at the farm. The first was to inform George that he had some information about how George could obtain the old age pension and hand over the farm to he and Angela. George responded by telling Craig not to come and tell him what to do. That occurred about twelve to fifteen months before George died.
[68]Transcript 124
80 The second occasion occurred when Craig attended at the farm after George had upset Angela the night before. Dorothea would not let Craig into the house. George was in the house. Craig walked around to the front of the house and called out “You’re old. You haven’t got long to live.”[69] It would appear that these two incidents precipitated Dorothea and George to instruct their solicitors to write the letter to Craig referred to in paragraph 38 above.[70]
[69]Transcript 127-128
[70]Transcript 130
81 Dorothea was taken to George’s Will, referred to in paragraph 41 above. She was asked about George’s reference to Angela’s conduct towards him. She said that Angela used very bad language when she spoke to George. She said to both she and George “You make me sick; you’re up each other’s arses”. She also called she and George “cunts”. She described Angela’s conduct toward she and George as playing the two of them off against each other which had occurred over many years.[71]
[71]Transcript 129-130
82 In December 2005, Dorothea said that she spoke to Angela, who informed her that she was going to live in Kilmore. She said that Angela blamed she and George for the move she was making, and added that she and George would never see Cooper again. She denied that she and George gave an ultimatum to Angela that she either work on the farm and give up Craig or if she remained with Craig she would not get the farm.[72]
[72]Transcript 131-132
83 Following George’s death and his funeral, there was another incident when Angela telephoned Dorothea and told her that she and Craig wanted to come and see her on a Wednesday to deal with her. Dorothea refused to allow them to come and see her because her brother and sister-in-law were coming to see her. She said Angela responded by saying “Well, send them out, we’re coming up,” and again she was told that she would never see Cooper again.[73]
[73]Transcript 134-135 and 161
84 Dorothea also gave evidence concerning the partnership agreement and the proceeding in the Magistrates’ Court at Hamilton which resulted in a payment of a sum of money to Angela and a Deed of Dissolution of the partnership.
Cross-examination of Dorothea
85 Mr Gillies cross-examined Dorothea. Dorothea said that she had probably forgotten to tell Mr Harvey that when Angela informed she and George that she did not want to stay at school that George said do not blame us when we get older.
86 Dorothea repeated that George did say to Angela that she would get the farm. She agreed that he said it often. She agreed that it would be natural for George to want Angela to take the farm over when he died. However, she denied that she ever heard George say “If you work the farm you will get the farm at the other end”. She agreed that the wages paid to Angela were possibly not the wages one would normally pay a farm hand. In re-examination, she added that a farm hand would not be provided with accommodation, food, cars, vehicle registration and insurance, petrol, and dental and medical cover.[74] She agreed that the reason Angela took on part-time work was because she could not make ends meet. She agreed that when the plaintiff stayed at Miss Pinkerton’s home that George did ring and ask Angela come home and work on Sundays, and that Angela complied with those requests.[75]
[74]Transcript 170-171
[75]Transcript 139-141
87 Dorothea was asked about a number of wills made by George, and in particular, about the one of which left 600 acres of land to Angela. She said it was possible that George made a will of that kind because he wanted her to eventually have the farm, and then it was put to her that in fact that was what he had said to Angela. She agreed that he had said that he wanted Angela to have the farm.[76]
[76]Transcript 143
88 Mr Gillies cross-examined Dorothea about a number of diary notes created by Mr Stratmann, solicitor, and Ms McAllian, solicitor, relevant to instructions given by she and George regarding how they wished to dispose of their estate upon their death. I reserved the question of whether I would permit Mr Gillies to tender those documents. They are documents 2.55, 2.56, 2.57, 2.58, 2.59, 2.73 and 2.74. It is probably convenient to deal with those documents now. I permitted Mr Gillies to cross-examine from those documents. He chose not to call the maker of the document. He sought to tender them because they contained statements allegedly made by Dorothea and George which went to Dorothea’s credit.
89 Having cross-examined Dorothea from the documents and having obtained her answers, it seems to me that there is nothing to be gained by tendering the documents, because I consider them to be of little utility and marginal probative value, particularly when I have the direct evidence of Angela and Dorothea relevant to the central questions in this proceeding, which are whether a representation was made relevant to a claim of proprietary estoppel. I uphold Mr Harvey’s objection to the documents being tendered for these reasons.[77]
[77]Much of the cross-examination at Transcript 147-156 dealt with George’s wills, and instructions given to his solicitors for the purpose of preparing wills. I do not intend to repeat that cross-examination because it seems to me to be of little utility and of marginal probative value.
90 Mr Gillies cross-examined Dorothea about her desire to buy a flat in Casterton. It was said to be relevant to the moulding of a remedy. Dorothea admitted that she wanted to buy a flat in Casterton, but had not taken any further step in that respect after this proceeding commenced.
91 Dorothea said that she had not previously heard from Angela that she wanted to be a vet. She agreed that Angela did work experience at the Casterton racecourse.[78]
[78]Transcript 159
92 Dorothea agreed that George did not approve of Craig, and that he did not go to Angela’s wedding. She said George never went to weddings. She said his failure to attend the wedding was not because he did not care about Angela, but because he was not happy about the marriage. She agreed that Angela tried to make peace with she and George regarding Craig over a few years. She did not entirely agree that Angela blew up when an ultimatum was made that it was the farm or Craig. She agreed that the family circumstances put stress on Angela, and also on she and George.[79]
[79]Transcript 161
93 Dorothea agreed that the eulogy read by Ms Sherry was an accurate description of what occurred between Angela and George.[80] She agreed that Angela had stayed in the house on the farm for about five weeks before George died. She denied telling Angela at that time that she would get the farm at the other end.[81]
[80]Transcript 163
[81]Transcript 163
Findings on the Evidence
94 I have set out a fairly long summary of the evidence of the witnesses, and from that summary I propose to now make a number of findings relevant to the cause of action raised by Angela and the defence raised by Dorothea.
95 Firstly, there is no doubt that George was an excellent farmer. The evidence is essentially all one way that he was not only an excellent farmer, but maintained the farm in excellent condition.
96 George could not have been an excellent farmer and have maintained the farm in that condition if he was physically disabled. According to Dorothea, he was 6 feet 2 inches tall with a wiry build, and apart from a limp resulting from polio, he was otherwise able to do everything he was called on to do as a farmer. He was able to work to that level of capacity and achieve the results on the farm just described well before Angela left school and came to work on the farm.
97 I do not accept Angela’s evidence that George suffered from any incapacity rendering him unable or less able to undertake various aspects of work on the farm. He might have needed help, but the evidence which I prefer from Dorothea is that he was a very capable man, and an excellent farmer.
98 Secondly, Angela left school in 1985. The contest in the evidence is not whether she left school, but the reasons why she left school. Angela said that she was induced to leave school by the representation made by George, and tacitly approved by Dorothea “If you work on the farm you will get the farm at the other end”. Dorothea said that the last part of that alleged representation was not made by George in her hearing, but that George said on many occasions that Angela would get the farm.
99 I think it is more likely that Angela wanted to leave school. I think it is more likely that Dorothea and George wanted her to remain at school. My reasons for making that finding are that there is no evidence to point to George having any difficulty in maintaining and running the farm on his own. It must be remembered that in 1985 Angela was fifteen or sixteen years of age and would have been a relatively inexperienced farm labourer. Furthermore, she did not return to the farm as a farm labourer. She first worked in a milk bar known as Newmans before becoming more actively involved in work on the farm.
100 Dorothea and George had made efforts to place Angela at Monivae College in Hamilton and have her board with another family. It strikes me as being an arrangement designed to benefit Angela by giving her educational opportunities.
101 I think it is more likely that Angela wanted to leave school, and that Dorothea and George tried to discourage her from doing so. I accept Dorothea’s evidence that the first approach made by Angela on the subject of leaving school was made to her, and was followed up by Dorothea and Angela speaking to George. I accept that George did say words to the effect that neither he nor Dorothea were to be blamed by Angela later on in life if she regretted leaving school at an early age.
102 It seems to me that she wanted to leave school, and persuaded Dorothea and George to allow her to do so because she wanted to work, and eventually work on the farm. However, that needs to be seen in the context of the admission by Dorothea that George repeatedly said that the farm would be Angela’s. What is abundantly clear is that apart from a short period of time working at Newmans, the plaintiff then worked on the farm for twenty one years for paltry wages. The fact that she did so seems to me to be consistent with George representing to her that if she worked on the farm that she would get the farm. Therefore, I accept Angela’s evidence that a representation was made of that kind.
103 Thirdly, I do not accept Angela’s initial evidence that she worked on the farm as often and as extensively as she described in her evidence-in-chief. She estimated that over a twenty-one-year period, she was working 35 hours per week at a minimum and seven days a week at a maximum. However, when Mr Harvey cross-examined the plaintiff with the use of the table he produced, she could not been working seven days a week at maximum. A simple breakdown discloses the following:
· In 1990, Angela worked in Coonawarra in vineyard work. She was working three days per week.[82]
[82]Transcript 62
· In 1991, Angela worked in Coonawarra in vineyard work. The drop in income from $12,577 to $6,080 was because she dropped from three days per week to two days per week.[83]
[83]Transcript 62
· In 1992, Angela worked in Coonawarra in vineyard work. She earned $15,861. She was working three days per week.[84]
[84]Transcript 63
· In 1993, Angela worked in Coonawarra in vineyard work. She earned $13,901. She was working three days per week. [85]
[85]Transcript 63
· In 1994, Angela worked in Coonawarra in vineyard work. She earned $14,915 ($207 from the partnership). She was working three days per week.[86]
[86]Transcript 63-64
· In 1995, Angela worked in Coonawarra in vineyard work and as a rouseabout. She earned $12,143 ($1,001 from the partnership).
· In 1996, Angela worked in Coonawarra in vineyard work. She earned $8,485 ($6,260 from the partnership).[87]
[87]Transcript 70
· In 1997, Angela worked in Coonawarra in vineyard work, farm work, and some administrative work. She earned $12,484 ($1,271 from the partnership).[88]
[88]Transcript 72
· In 1998, Angela worked in Coonawarra in vineyard work and some administrative work. She earned $16,770 ($384 from the partnership).[89]
[89]Transcript 72-73
· In 1999, Angela worked in Coonawarra in vineyard work and in some administrative work. She earned $15,517 ($6 from the partnership).[90]
[90]Transcript 73
· In 2000, Angela worked in Coonawarra in vineyard work and in some farm work. She earned $10,661 ($272 from the partnership). This was at a time when she was living on the property at Kuyuac. It would appear that she worked on that property about two days a week.[91]
[91]Transcript 73-75
· In 2001, Angela worked in farm work. She earned $10,186 ($621 from the partnership). [92]
[92]Transcript 75-76
· In 2002, Angela worked in farm work. She earned $7,077 ($168 from the partnership).[93]
[93]Transcript 76-78
· In 2003, Angela worked in farm work. She earned $14,993 ($1,016 from the partnership).[94]
[94]Transcript 78
· In 2004, Angela worked in farm work. She earned $10,187 ($369 from the partnership).[95]
· In 2005, the plaintiff earned $2,293 from the partnership. Cooper was born on 11 September 2004. His birth coincided with Angela’s drop in income in 2004 and 2005.[96]
[95]Transcript 77
[96]Transcript 78-79
104 Mr Harvey took the plaintiff through the income she said she earned on the farm:
· From 1985 to 1989 at $50 per week – as$13,000.
· From 1990 to 1994 at between $50 to $75, averaged out to $62.50 – $16,250.
· From 1995 to 2003 at $100 per week – $46,800.
· From 2004 to 2005 at $200 per week – $20,800.
105 Mr Harvey put to the plaintiff that if all of those figures were added up they amounted to about $96,850. The plaintiff agreed that arithmetically the figures put to her by Mr Harvey were probably correct.
106 What is clear enough is that in 1993, 1994 and 2000 Angela nominated the number of days she was working off the farm to earn the income set out in her taxation returns. She was not asked to nominate the number of days she was working off the farm in the other years, but I think I can infer that the amount of the income she earned over those other years is consistent with what she earned in 1993, 1994 and 2000, which suggests that she was probably working two or three days a week in other employment off the farm.
107 It is convenient to note at this point that Angela said that she did not receive the income from the partnership in any of the years between 1990 and 2005.
108 If Angela was working up to three days per week in other employment off the farm, then she had about another four days in the week to apply herself to work on the farm. Although the vineyard work was seasonal, leaving her with up to four months or more without that work which she could devote to the farm. It seems to me that her evidence that she was working up to seven days per week or even 35 hours per week is difficult to accept when she was doing vineyard work and the other farm work.
109 There was a clear conflict in the evidence given by Angela that she worked weekends, and Dorothea, who described Angela as being a reluctant weekend worker. Angela’s evidence is corroborated, to some extent, by Ms Pinkerton, who said that when George called on a weekend when Angela was staying with her, that Angela went home on Sunday to work on the farm. That was Ms Pinkerton’s experience with Angela between 1990 and 1991. It is also corroborated, to some extent, by the evidence of Ms Gheller, who observed Angela to work on weekends during the one week that she made her annual visits to the farm.
110 I accept the evidence of Ms Pinkerton, which was unchallenged. I have some misgivings about the motives of Ms Gheller. Ms Gheller was the source of the article in the Truth. Angela obtained it from Ms Gheller. Ms Gheller said that it was produced because it would give the Court a good indication of Dorothea’s character, which I consider means that she believes Dorothea is a liar. She did not elaborate on what she meant, nor did she point to any aspect of Dorothea’s character which demonstrated that she is a woman of poor character and is a liar. I was not overly impressed by Ms Gheller. Her evidence carried the flavour of a demonstrable bias in favour of Angela and palpably against Dorothea. I am disinclined to accept much of her evidence.
111 There was a very strong flavour in the evidence of Angela that she has been seriously wronged by George and Dorothea in going back on a promise to leave her the farm, and putting an ultimatum to her that she either have the farm or Craig. Of course, it is Dorothea’s evidence that no such promise was made, nor was any ultimatum made. Both Angela and Dorothea blame each other for the family breakdown. My impression of the evidence of Angela is that it was coloured by her strong feelings that she has been wronged. On the other hand, I thought Dorothea gave her evidence in a relatively straightforward and uncomplicated fashion. I thought one of the impressive markers in her evidence was the fact that she candidly agreed that George had said on a number of occasions that the farm would be Angela’s, but that no statement was made by George of the extent alleged by Angela. It was not put to Dorothea that she was, and is, a person of poor character and is a liar. Mr Gillies chose to challenge her evidence quite properly, but falling short of going to the lengths of attacking her creditworthiness and reliability, which resonated in the evidence of Angela and Ms Gheller.
112 It seems to me that there is something in the evidence of Dorothea that Angela was disinclined to work on the farm on weekends. In the years after she obtained her driver’s licence, it is more likely than not that she went out on weekends as described by Dorothea, as most young people of that age would prefer to socialise with their friends whose working week probably saw them have the weekends off. In the end, I think it is more likely than not that Angela did not work on weekends to the extent that she said she did in her evidence, but that she did work some weekends.
113 Having reached this point, it seems to me that for significant periods of time in the years between 1990 and 2005, Angela was occupied in work off the farm. It is more likely than not that she did work on the farm on a weekly basis, but not as often on weekends as she said in her evidence. It is difficult to frame how many days in an average week she worked on the farm, but certainly less than 35 hours per week, and not seven days per week. However, she might have increased the hours she worked per week when her seasonal vineyard work came to an end each year.
114 Mr Harvey spent some time cross-examining Angela on the work she did off the farm. It seemed to me that he wanted to establish that Angela working so often off the farm was inconsistent with a representation being made that if she worked on the farm it would be hers. I do not accept that Angela’s conduct in working off the farm as often as she did is inconsistent with a representation upon which she acted to her detriment. It is reasonably clear from the evidence of Dorothea that the wages paid to Angela compare unfavourably with the wages of a farm labourer, and that Angela worked off the farm because financially she could not make ends meet on the wages paid to her by George and Dorothea. The latter seems to be the reason why Angela took on work off the farm.
115 Dorothea said that the reason why Angela worked off the farm was because she was a spendthrift.[97] It seems to me that is a proposition difficult to substantiate, given that the most Angela earned in any year was $16,770 in 1998 (including $384 in the partnership), which is $322.50 gross per week. Between 2000 and 2005, Angela’s income was very small by any standard.
[97]Transcript 171
116 Fourthly, whilst I am not persuaded by Angela’s evidence regarding the reason why she left school, I nonetheless think that it is more likely than not, that George represented to Angela that if she worked on the farm it would be hers. I think George intended Angela to rely upon that representation, and in fact that is what she did. She subsequently worked on the farm for the next twenty one years for paltry wages, although she was provided for by George and Dorothea in terms of the board, meals, petrol and other things which I have already referred to, and was given the benefit of cars provided by George and Dorothea. She might have contributed some monies to the purchase of some cars, but it would seem that she gained a substantial benefit in terms of the value of the cars over and above what she contributed.
117 Furthermore, it is clear that Angela did not make a claim under Part IV of the Administration and Probate Act 1958 against George’s estate. She said that she did not make such a claim because at the time of George’s death, or thereabouts, Dorothea said to her that she would carry out George’s promise that the farm would be hers. I accept that this is the reason why Angela did not bring such a claim. The nature of her evidence when the subject was raised seems to me to be consistent with her attempts at reconciliation with George and Dorothea, as George was nearing the end of his life. Angela also said that she trusted Dorothea to honour George’s promise, and that she did not bring such a claim because she did not want to inflict grief upon Dorothea.[98]
[98]Transcript 48
118 The findings I have made set the backdrop to the first determination I must make, which is whether there was a representation of the kind alleged by Angela; whether she relied upon the representation to her detriment, and that the foregoing amounts, as a matter of law, to a proprietary estoppel.
The Representation
119 Mr Gillies and Mr Harvey referred me to a number of authorities which I have read relevant to the doctrine of proprietary estoppel. It would appear that the doctrine originated in a number of 19th-century English cases namely, Dillwyn v Llewelyn,[99] Ramsden v Dyson & Anor[100] and Plimmer v Wellington City Corp.[101]
[99][1861-73] All ER Rep 384
[100](1866) LR1HL 129
[101](1884) 9 App Cas 699
120 In Giumelli v Giumelli,[102] Gleeson CJ, McHugh, Gummow and Callinan JJ referred to Dillwyn, and also to Riches v Hogben[103] when discussing the order made by the Full Court of the Supreme Court of Western Australia. They said:
“In these cases, the equity which found that the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and they found relief which requires the taking of active steps by the defendant.”[104]
[102](1999) 196 CLR 101
[103][1985] 2 Qd R 292
[104]at 112
121 In Donis v Donis,[105] Nettle JA reviewed a number of relevant authorities including Dillwyn and Giumelli, and then expressed the principle of proprietary estoppel in the following terms:
“The underlying principle is that conduct of the promisor in engaging the complainant to change his or her position to their detriment on the footing that the promised property will be theirs, when acted upon by the complainant, creates an equity which binds the promisor to make good the expectation.”[106]
[105][2007] VSCA 89
[106]Donis v Donis (supra) at paragraph [36]
122 In Harrison v Harrison,[107] Kaye J reviewed the English cases, and the development of the doctrine of proprietary estoppel in the Australian context.[108] His Honour then gave a simple summary of the principles of proprietary estoppel and what the claimants in that case needed to establish:
[107][2011] VSC 459
[108]at paragraphs [362]-[385]
“I shall later, in these reasons, review the authorities relating to the principles of proprietary estoppel. However it is evident, from that review, that, in the context of this case, in order to establish a case based on proprietary estoppel, the plaintiffs must establish the following:
(1) That the defendant made to them promises and undertakings that he would confer on them an interest in property.
(2) That the plaintiffs acted in reliance on those promises by refraining from bringing proceedings for provision, under Part IV of the Act, from Kenneth’s estate.
(3) That the plaintiffs acted reasonably in so relying on the promises and undertakings made to them by the defendant.
(4) That the defendant knew or intended that the plaintiffs would rely on his promises and undertakings.
(5) That the plaintiffs acted to their detriment on the basis of the undertakings and promises made to them by the defendant.”[109]
[109]paragraph 18
123 The five points enunciated by Kaye J were relevant to the case before him. Although the language he used was directed specifically to the facts of the case before him, with relevant recasting, they apply equally to this proceeding and are a very helpful matrix of the principles of law applicable in the determination of whether Angela has established her case.
124 Mr Harvey asked the question rhetorically, that if I were to find that George did make the representation as articulated by Angela, then what does it mean? I have considered the evidence of Angela and the words constituting the representation very carefully when compared with the concession made by Dorothea that George did say that the farm would be hers.
125 I am not persuaded that there is really much difference between the two versions of what George allegedly said except for that part of the representation relevant to the detriment alleged by Angela, that if she worked on the farm it would be hers in the end. Leaving aside that part of it, there is no real controversy in the facts that from an early time, and more likely around the time when Angela left school, that George, at the least, said to her that the farm would be hers.
126 The undoubted facts are that Angela did work on the farm for twenty one years. I think the fact that Angela did work on the farm makes it more likely that George not only said to her that the farm would be hers, but that it would be hers if she worked on the farm.
127 I do not think that the words “at the other end” are of any particular importance. If one looks at what I have found to be the words which were spoken by George as constituting the representation that if Angela worked on the farm it would be hers, commonsense dictates that it would be hers at a point in time when either George gave up working on the farm or when he passed away. I think it is more likely that George did use those words as well.
128 I think the words which constitute the representation made by George are sufficiently clear and unequivocal to render a clear meaning conveyed by George and understood by Angela. The subject of the construction of a promise was dealt with by Kaye J in Harrison. His Honour referred to a number of authorities,[110] and then concluded:
“Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promisor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.”[111]
[110]Among which were Flinn v Flinn & Anor [1999] 3 VR 712 and Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86
[111]at paragraph [384]
129 I think it is more likely that George was probably not overly expansive in the exchanges he had with Angela, but he made a representation which he repeated, which was sufficiently expressed to permit Angela to understand that coinciding with her leaving school, that if she worked on the farm it would be hers. It seems to me that there was no ambiguity or uncertainty in the representation and what George intended to convey to Angela.
130 I find that George made the representation initially which led to the plaintiff working on the farm, and that he repeated the representation, intending the representations to convey to Angela that he would confer on her an interest in the farm.
131 I find that Angela acted in reliance on the representations after she left school by working on the farm to the extent consistent with the findings I have made earlier.
132 I find that Angela acted reasonably in relying on the representations made by George, not only because it was made initially, but because the representation was repeated on a number of occasions.
133 I find that George, and Dorothea, intended Angela to rely on the representations. Even if the representations are taken at their most basic, and that is, the limited nature of the representation which Dorothea said was made by George, it was nonetheless a representation made by George to encourage Angela to work on the farm because he wanted to confer on her an interest in the farm, and indeed, the whole farm.
134 I find that Angela acted to her detriment in relying on the representation made by George. Angela worked on the farm for twenty one years for paltry wages. She may have had board, and other expenses paid, as well as the provision of cars, but what is clear from the evidence of Dorothea is that the wages paid to Angela would probably have been less than the wages paid to a farm labourer, and that Angela needed to work off the farm to earn a reasonable income. Neither George nor Dorothea discouraged the plaintiff from working off the farm, and it would appear that the arrangement which came into being was that Angela working off the farm was an acceptable arrangement between George, Dorothea and Angela.
135 Furthermore, although I have found that it is more likely that Angela wanted to leave school, she nonetheless had her attention directed to working on the farm when she could have pursued other work which might have been more profitable. She did so on the footing that it was the detriment she was prepared to suffer for George to honour the representation.
Other Matters
136 A fair amount of time was extended by Mr Gillies and Mr Harvey examining and cross-examining witnesses to establish to what extent the relationship between George and Dorothea and Angela suffered as a consequence of Angela’s relationship with Craig. Whilst that might have been so, it does not occur to me that it figures in any material way to the evidence which I must assess and evaluate in determining whether Angela has established her cause of action or not.
137 Similarly, the reference by Mr Gillies to the wills made by George, and the reconciliation which saw George apparently give instructions for the preparation of another will which he did not execute because it was considered that he did not have testamentary capacity, are likewise immaterial.
138 Lastly, Mr Harvey submitted that the Deed of Settlement executed by George, and Dorothea and Angela following the settlement of the Magistrates’ Court proceeding settled all claims which Angela had against George Dorothea, including this claim. The submission was not expanded upon by Mr Harvey and any material way. I propose to dispose of some relief. Its purpose was to reflect the settlement of a partnership dispute. I do not see that it can be applied more widely.
The Remedy
139 In Harrison, Kaye J dealt with the relief sought by the plaintiff, and made some relevant observations to the cause of action pleaded by Angela:
“The plaintiffs do not seek, by way of relief, enforcement of the promises given to them by the defendant, or the expectation created by them. As I have already observed, in cases of proprietary estoppel, the prima facie position is that the court, ordinarily, enforces the expectation arising from the relevant promises or representations. In each case, the relief is primarily designed to redress the effect of the unconscionable conduct of the defendant in departing from the promises on which the plaintiff has relied. In most cases of proprietary estoppel, that redress is most effectively provided by enforcement of the promise and the expectation arising from it. However, it is clear from the authorities that the prima facie approach, of enforcing the expectation, is not an inflexible rule. In particular, as Robert Walker LJ pointed out in the passage from his judgment in Jennings v Rice, which I have set out above, enforcement of the expectation may not be appropriate, where the expectation is uncertain or imprecise.”[112]
[112]at paragraph [401]
140 On the basis of the findings I have made, it is clear to me that Angela’s expectation was to have conferred on her an interest in the farm as a whole. The position here is different from the position in Harrison. Kaye J concluded that the relief to which the plaintiffs were entitled was the provision that would have been made had they made an application for relief under Part IV of the Administration and Probate Act 1958.
141 Mr Gillies submitted that I should shape the relief by ordering that the larger portion of the farm be transferred to Angela, and the balance to Dorothea. Implicit in that submission is some recognition that it was not George’s intention to deprive Dorothea of the means of survival consistent with what she had been accustomed to.
142 At the end of the submissions made by Mr Gillies I invited him to consider whether Angela would move for a declaration that Dorothea is estopped from denying Angela’s entitlement to the farm by a transfer of the farm to her, or a transfer of a lesser portion of the farm.
143 I propose to permit counsel to have the opportunity to read these Reasons for Judgment, and then I will hear counsel on the appropriate orders which I should make.
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