Cameron v Milburn (No 2) (Ruling)

[2013] VCC 914

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:	25 July 2013
DATE OF JUDGMENT:	1 August 2013
CASE MAY BE CITED AS:	Cameron v Milburn (No 2) (Ruling)
MEDIUM NEUTRAL CITATION:	[2013] VCC 914

RULING
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Subject:   ESTOPPEL              

Catchwords:             Principal judgment delivered – finding that the defendant is estopped from denying that an interest was conferred on the plaintiff by promises made by the plaintiff father – determination of the equitable relief   

Legislation Cited:     Administration and Probate Act 1958, s91(1) and (4)

Cases Cited:Harrison & Ors v Harrison [2011] VSC 459; Worladge v Doddridge (1957) 97 CLR 1

Ruling: The farm property be divided in accordance with the findings in paragraph 14 of this Ruling.

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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       Following a trial on 3, 4 and 5 June 2013, I delivered judgment in this proceeding on 25 June 2013.[1]  I reserved the question of the formulation of the relief for the parties to consider whether there was a basis upon which they might be able to resolve how the rural properties at Wando Vale might be divided up as between them.

[1][2013] VCC 832

2       Mr Gillies of counsel appeared for the plaintiff, Angela, and Mr Harvey of counsel appeared for the defendant, Dorothea.

The competing submissions

3       Mr Gillies and Mr Harvey each provided me with very helpful written submissions.  I have considered the authorities which they each referred me to, but I am rather more attracted to the methodology applied by Kaye J in Harrison & Ors v Harrison.[2]

[2][2011] VSC 459

4       In Harrison, Kaye J found that the plaintiffs were induced by promises of an interest in property should they not make applications under Part IV of the Administration and Probate Act 1958 (“the Act”). Furthermore, he found that if they had made such applications, then they would have succeeded so that orders would have been made out of the estate of their father.[3] Angela said that she was induced by promises made by George which resulted in her not making an application under the Act.

[3]Harrison & Ors v Harrison (supra) at paragraph [399]

5       If Angela had made an application under Part IV of the Act, it would probably have succeeded. It seems to me that she would have succeeded in proving, pursuant to s91(1), that George owed her a responsibility, and that, when regard is had to the considerations under ss(4)(e)-(p), there would have been findings favourable to her, resulting in provision being made for her proper maintenance and support. I did not hear Mr Harvey cavil with the probability that such an application would have had that result, nor that it was legitimate for me to rely on the detriment suffered by Angela in not making such an application as a basis to devise the appropriate relief in this proceeding.

6       Mr Gillies and Mr Harvey agreed that Angela should not have the whole of the farm transferred to her.  However, it is the extent of the division of the farm as between Angela and Dorothea where they parted company.

7 If Angela had brought an application under the Act, the Court would inevitably have had to balance up what would amount to proper maintenance and support for her against Dorothea’s strong moral claim. Angela would not have obtained an order for provision for her maintenance and support of the whole the farm, but so much as was adequate to see to her proper maintenance and support, and Dorothea would have been left with sufficient to permit her to maintain her life in a style consistent with what it had been in the past, sufficient to fund an alternative dwelling and to have a fund from which to meet contingencies.

8 I am persuaded by the submission made by Mr Harvey that there is an obvious and palpable poisonous relationship between Angela and Dorothea which must be weighed into consideration when dividing up the farm. I think his submission that Angela and Dorothea are probably incapable of having any degree of harmonious and co-operative relationship is correct. It is for that reason that I consider that the farm should be divided to reflect the probable result of an application under the Act.

9       In the end, I consider the proposal made by Mr Harvey is the more attractive.  It is as follows:

“1The defendant deliver up to the solicitors for the plaintiff:

(a)     duplicate Certificate of Title Volume 10268 Folio 838; and

(b)     duplicate Certificate of Title Volume 11143 Folio 810.

2The plaintiff, through her solicitors, prepare a transfer to effect the transfer of the land described in Certificates of Title Volume 10268 Folio 838 and Volume 11143 Folio 810 from the defendant to the plaintiff (Transfers)

3The defendant sign the Transfers and return them to the solicitors for the plaintiff within seven days of receipt.  The plaintiff shall bear the cost of and incidental to the Transfers and the lodgement.

4The defendant take all reasonable steps to sell the land described in Certificates of Title Volume 8327 Folio 323, Volume 5623 Folio 501 and Volume 3033 Folio 409 at best market price as soon as practicable (Sale).

5The defendant is at liberty to retain the proceeds of the Sale (less commission and statutory charges) and use such proceeds for accommodation costs and living, medical and incidental expenses.

6Upon the defendant’s death, the plaintiff shall be entitled to the residue of such proceeds (including such converted into real or personal property).

7The plaintiff shall pay the defendant the sum of $1,806.34 being the cost of half of the transcription costs.

8Save for paragraph 7, above, there is no order as to costs.”

10      I will ignore paragraphs 7 and 8 for the time being, because they are still contentious and are to be the subject of further submissions to be made to me by Mr Gillies and Mr Harvey.  As for the balance of the orders, they seem to me to be sensible.  Firstly, the orders benefit Angela by having two parcels of land transferred to her which are described in Exhibit B as Olive Grove of 109.4 hectares and Wood Burn of 54.85 hectares.  Secondly, it, in essence, provides Dorothea with a life interest in the proceeds of sale of three parcels of land with the residue, upon her death, to go to Angela.

11      Mr Gillies submitted that Dorothea should have Wood Burn transferred to her.  It would permit her to sell the land.  It apparently has a value of around $150,000.  He submitted that, together with the monies which Dorothea has in her possession, it will allow her to purchase an alternative dwelling and to have something available to meet contingencies.

12 I am less persuaded by Mr Gillies’ submissions, because I think it provides Angela with significantly more than an application under the Act would see her receive as an adequate provision for her proper maintenance and support. It would also be to the detriment of Dorothea and be a cause of uncertainties to which a widow should never be exposed, given the emphasis in the authorities with which I am familiar, that one should not underestimate the responsibility of a deceased to a surviving spouse as being a primary responsibility.

13 It is not my intention to turn this short ruling into a judgment under the Act, but an assessment of what is adequate provision must be more than merely “keeping the wolf from the door”, and I think that is also relevant when considering George’s moral responsibility to his surviving spouse. What provision is made for Angela must not deprive Dorothea of what I have referred to in the preceding paragraph.[4]

[4]Worladge v Doddridge (1957) 97 CLR 1 at 12

Conclusion

14      I propose to make orders in terms of paragraphs 1-6 of the orders proposed by Mr Harvey.  I propose to email this ruling to Mr Gillies and Mr Harvey and then to list this matter for further hearing to formally pronounce orders after hearing what submissions are to be made on the question of costs.

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