Consolaro v Consolaro - [2009] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CONSOLARO -v- CONSOLARO [2009] WASC 240

CORAM: EM HEENAN J

HEARD: 5 7 & 11 14 MARCH & 16 20 JUNE 2008

DELIVERED : 28 AUGUST 2009

FILE NO/S: CIV 1906 of 2002

BETWEEN: ROSS JOSEPH CONSOLARO
Plaintiff
AND
PHILLIP JAMES CONSOLARO
Defendant

Catchwords:

Proprietary estoppel - Claim to interest in family farming lands - Son acting on representations of parents - Return to work on family farming lands - Promise for name to be placed on title to same degree as parents - Acting on similar promises over many years - Building house on other family land after oral agreement with parents for the purchase of the land - Land not transferred to plaintiff during mother's lifetime - Dispute over location of house - Caveat to protect interest - Eventual transfer of title of house block to plaintiff - Plaintiff conducting sand mining operations on other family lands - Royalty agreement with father - Dispute over distribution of mother's estate - Deterioration of relationships between plaintiff, his father and other members of the family - Legal proceedings concerning sand mining rights - Abrupt termination of plaintiff's access to farming lands - Claim for 1/3 interest in farming lands

Legislation:

Nil

Result:

Declaration and orders that plaintiff has a one undivided equal third share as tenant in common with the defendant in the subject land

Category: B

Representation:

Counsel:

Plaintiff: Mr M S BarrettLennard
Defendant: Mr K E Yin

Solicitors:

Plaintiff: M S BarrettLennard & Co
Defendant: David Taylor Solicitors

Case(s) referred to in judgment(s):

Cameron v Murdoch [1983] WAR 321
Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285
Donis v Donis (2007) 19 VR 577
Giumelli v Giumelli (1999) 196 CLR 101
Gregory v Mighell (1811) 18 Ves 328; (1811) 34 ER 341
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Lake v Craddock (1732) 13 P Wms 157; 25 ER 101
Olsson v Dyson (1969) 120 CLR 365
Ramsden v Dyson (1866) LR1HL 129
Riches v Hogben [1985] 2 Qd R 292

EM HEENAN J: This action by an eldest son against his aged father seeks a declaration and orders that the defendant, Mr Phillip James Consolaro (Felice Giacomo Consolaro) who presently is the sole registered proprietor of a tract of farming land on Great Northern Highway near Walyunga, upon which there is also located a commercial sandpit, holds that land, as to a one‑third undivided share, on trust for the plaintiff, Mr Ross Joseph Consolaro. The plaintiff seeks orders that the defendant should transfer that third interest in the land to him immediately, or alternatively that the interest should be transferred to him on the death of his father. The plaintiff also presented his case on the basis that if some interest in the Walyunga land other than a one‑third undivided share was the equity in the land which should be recognised for the plaintiff then such share as so ascertained should be declared to be the extent of the interest of the plaintiff or, alternatively, that other relief sufficient to recognise that interest should be granted.
Essentially, the plaintiff's claim is that from an early age he worked on the various Consolaro farming properties and gave up opportunities to pursue other trades or careers on the faith of a succession of promises made by his father, the defendant, or more frequently by his late mother, Mrs Winnie Patricia Consolaro, on behalf of herself and the defendant, that in return his name would be put on the title deeds to the family properties as an equal one-third owner of the lands together with his father and mother. Accordingly, the claim advanced by the plaintiff is of the kind recognised in Dillwyn v Llewelyn (1862) 4 De GF & J 517; (1862) 45 ER 1285; Olsson v Dyson (1969) 120 CLR 365; Ramsden v Dyson (1866) LR1HL 129; Riches v Hogben [1985] 2 Qd R 292; and, more recently, in Donis v Donis (2007) 19 VR 577 for which, although as that last case illustrates and the decision in Giumelli v Giumelli (1999) 196 CLR 101 demonstrates, the remedy which equity may determine is appropriate in the particular instance might be a pecuniary rather than a proprietary one.
The plaintiff's claim requires a review of the activities of the Consolaro family and their farming operations over many years. Phillip and Winnie Consolaro established and operated a vineyard property in Herne Hill on the corner of Great Northern Highway and Vine Street in 1938. This is where they lived and raised their family of four children and two adopted children who were, respectively, the nephew and niece of Mrs Winnie Consolaro and, therefore, cousins of the plaintiff, his brother and sisters. This land, which has come to be known as the Vine Street property, was used for several productive purposes at different times. There were vineyards, vegetables and occasionally other small crops, a commercial wood yard, and a contract fuel depot, all operated by various members of the family from time to time. There was an old house in which the mother and father lived, and later a newer house into which they and the family shifted. Later still, a third house was moved to the property for the eldest daughter upon her marriage. Still later, a home was built for the plaintiff and his wife in which he and his family still live. How the plaintiff's home came to be built, where it was to be located and what were the arrangements between the plaintiff and his mother and father are the subject of much controversy in this case and will be addressed more fully later. Many years later in 1994 the land upon which the plaintiff's home had been erected was subdivided and transferred into the names of the plaintiff and his wife.
The Walyunga property comprised approximately 162 hectares (425 acres) when purchased by Phillip and Winnie Consolaro in 1966 as joint tenants. Over the years the area has been reduced because a section of about 12 acres was taken by the local shire. Another seven acres was used for other purposes and about five acres (2.09 ha) was subdivided off and transferred by Mr and Mrs Phillip Consolaro to their adopted daughter, Louise Cepo and her husband, where she and her family now live. The result is that the area of Walyunga presently remaining is approximately 401 acres and it comprises a farm and, as previously mentioned, a commercial sandpit. The operations of that sandpit were an issue of contention between the plaintiff and the defendant which seems to have led to the final break-up of the relationship between them but the details of that controversy will be described later.
In 1979 Phillip and Winnie Consolaro bought another farming property consisting of about 81 acres at Mount Warbrook and this has been referred to as the 'Deepdale' farm. Hay was grown on that property most seasons and cattle were pastured there. Mr Phillip Consolaro, the plaintiff and others worked there as occasion required and attended to the crops and stock. 'Deepdale' was sold by Phillip and Winnie Consolaro in 1988.

The members of the Consolaro family

Mr Phillip James Consolaro was born in Italy on 8 September 1911. He came to Australia as a young man and in due course met Miss Winnie (Vinka) Svilicich, whom he married some time in 1936. She and her family were of Slovakian descent and, according to the plaintiff, when the children were young the family spoke Slovakian rather than Italian at home, although all were fluent in English. Phillip and Winnie Consolaro had four children:
•Norma Adelaide Consolaro (Gordon), born 3 December 1936, who married Robert Gordon on 4 May 1963;
•Ross Joseph Consolaro, born on 31 January 1948, who married Judith Marylin Consolaro in 1970;
•Gail Lucille Consolaro (Rudez), born on 1 May 1950, who married Ante Rudez on 17 June 1971; and
•Rodney James Consolaro, born on 3 September 1953, who married on 6 September 1975.
Mrs Winnie Consolaro had a sister, Miss Kate Svilicich, who married Mr George Klarie. They had two children, Mr Michael Klarie, born on 8 January 1951, and Miss Louise Hope Klarie, born on 13 November 1963. Sadly, however, Mrs Kate Klarie died on 22 May 1965, when Michael was only 14 and Louise not quite two years of age. By agreement Michael and Louise Klarie were taken into the Consolaro family and were raised by Phillip and Winnie Consolaro and treated as their children, equally with their four cousins. Their father, Mr George Klarie, also lived at the Vine Street property with Mr and Mrs Phillip Consolaro for about six months a year and helped with vineyard work and the service of customers at the fuel depot. He died in 1981.
So this family, Phillip and Winnie Consolaro and what were, in effect, six children, were financially dependent upon the products of the Vine Street property and the work and enterprise of Mr Phillip Consolaro, the operations of the fuel depot and the wood yard and the extended farming operations at Deepdale and Walyunga. The family was assisted by other relatives and friends helping in the pruning and harvesting seasons but money was always short and the work was long, arduous and not very well remunerated. Nevertheless, the family prospered in its way by dint of a lot of hard work by all the members of the family and by great frugality. All the financial arrangements, the collection of moneys, the payment of wages, expenses and other outgoings and the allocation of moneys among the members of the family were handled by Mrs Winnie Consolaro. Her husband, Phillip, worked very hard on all aspects of the family business operations but left financial matters entirely to his wife. She had her own form of record keeping and attended manually to the payment of accounts and the recording of receipts in exercise books which she kept for that purpose in the Vine Street house. As will be seen, when the plaintiff Ross Consolaro and later his brother Rodney Consolaro were employed but living at home, they would give all their wages to their mother and she would give them money for daily living but, in effect, treat their wages as contributions to the general family operations.
After she was married Mrs Norma Gordon lived with her husband for a relatively short time at Bellevue but they moved back to the Vine Street property where they lived until 1985. Then Mrs Winnie Consolaro bought a house and land nearby at Bullsbrook and Mr and Mrs Gordon moved there where Norma Gordon also operated a small adjacent delicatessen business, ostensibly in partnership with her mother. Norma Gordon was Mrs Winnie Consolaro's constant companion and was familiar, to some extent, with her mother's financial methods. She was the eldest child, being nearly 12 years older than the next child, her brother Ross Consolaro, the plaintiff, and it is therefore not surprising that she had this close affinity with her mother. There had, in fact, been another son born in 1939 who died at or shortly after birth which, together with the intervening war years, provides some explanation of the age difference between Norma Gordon and the other children.
The plaintiff, Ross Consolaro, lived in the Vine Street property continuously until about six months before his marriage in 1970. Then he moved out and went and lived with his fiancée's family in Wembley until the two were married, after which they both came to live at Vine Street in the old house. Mrs Judith Consolaro was of an Australian family and it is clear that she was not made very welcome by her mother‑in‑law or father‑in‑law and I am satisfied that she had to endure many difficulties and hostilities over the years because of her different background. Ross Consolaro asked his mother and father for permission to build a home for himself and Judith on the Vine Street land and this was eventually agreed upon and a site identified. The house was built in 1976 and Ross Consolaro and his wife, Judith, have lived there ever since. However, the siting and construction of that house has since become a cause of animosity between Ross Consolaro and his own family on the one hand, his father, and Norma Gordon on the other. On this issue I am satisfied that the rights are unequivocally with Ross Consolaro and his family but the allegations which have been made against him and persisted in over many years, despite the clearest of evidence to the contrary, are factors which tell greatly against the credit of those who have made and persisted in the allegations.
Gail Consolaro married Ante Rudez in 1971 and they now live at Bullsbrook.
Rodney Consolaro was subject to frequent bouts of illness as a child. These prevented him from taking a major role in the manual operations of the vineyard and the other farming properties. After his marriage he moved to Osborne Park and then bought a home in Wanneroo, where he still lives with his wife and family. He experienced financial difficulties and his mother, Mrs Winnie Consolaro, persuaded him to return to work at the Vine Street property and on the other properties, and he did this for a period of about 12 years from about 1980 to 1992.
Tragically, Michael Klarie took his own life on 17 November 1980. His death affected the other members of the family very severely.
Louise Klarie‑Consolaro married Graeme David Cepo in 1991 and in 1992 they were given a 2.09 hectare block subdivided out of the Walyunga land by Mr and Mrs Phillip Consolaro, and that is where she and her family have been living since.
Mrs Winnie Patricia Consolaro died on 17 October 1993. She had been diagnosed with cancer in about 1987 and although her death was expected, it affected all the members of the family very greatly. She was the centre about which the rest of the family revolved and there was no doubt that she was the major decision‑maker and the arbiter of all financial arrangements within the family. By her will she appointed her husband, Phillip Consolaro, as her sole executor or trustee but if he should have predeceased her or failed to act, she appointed her son, Ross Consolaro, and daughter, Norma Gordon, as joint executors and trustees. Phillip Consolaro sought and was granted probate of the will on 28 April 1994 and embarked upon the administration of the estate. Under the will the principal dispositions were:
(a)a legacy of $10,000 to Louise Cepo;
(b)the residue of the estate to be held by the trustee upon trust:
•to pay the income to Phillip Consolaro during his life;
•thereupon absolutely as to both corpus and income for her four children, Norma, Ross, Gail and Rodney as tenants in common in equal shares;
subject to powers of the trustee to retain investments and to continue or carry on any business in which the textatrix may have been involved and with ample powers, including a power to borrow.
That will was made on 11 May 1976, some 17 years before Mrs Winnie Consolaro's death. It was also made before the death of Michael Klarie, who, unlike his sister Louise, was not mentioned as a beneficiary. At the time of Mrs Winnie Consolaro's death the family still owned all of Vine Street and the land at Walyunga but Deepdale had been sold in 1988, as previously noted.
The role of Mrs Winnie Consolaro in the performance and discharge of all the financial obligations of the family affairs is of significance when it comes to the representations alleged to have been made to the plaintiff about the grant of a share in family lands to him. One of the defences is that all the alleged representations were made by the mother and not the father but that does not accord with the evidence which I accept. Most of the representations relied upon by the plaintiff were said to have been made by his mother but he also alleges that some were made in his father's presence and that the last was made by the father. I have no doubt that when it came to making arrangements within the family about what child should be allocated to do what work or for what remuneration or how property was to be dealt with, Mrs Winnie Consolaro acted with complete authority for herself and her husband. The evidence is that she would discuss matters with her husband and that he would agree with her decision and that she would act accordingly. The probabilities are, overwhelmingly, that any promises which she made to Ross Consolaro, or to other members of the family, were made with Mr Phillip Consolaro's knowledge and approval. The whole family arrangements were carried out on the basis that decisions of this kind were for her to make and were invariably approved or ratified by Mr Phillip Consolaro, if only tacitly.
By the statement of claim the plaintiff sets out the basis upon which he claims equitable relief, namely:
6.Between 1966 and October 1993 the Defendant and also the Defendant's wife at intervals of generally not more than three‑monthly, persistently represented to the plaintiff that if the plaintiff carried out and permitted the Specified Activities the plaintiff would in consideration thereof receive an interest in the said Land as beneficial co‑owner and such beneficial interest as co‑owner would be registered in the name of the plaintiff without delay, in the alternative, following the decease of the Defendant (the representations).
Particulars of Specified Activities
(i)the carrying out of husbandry works on the Land, and on Deepdale and on the Home Block, without any or only nominal remuneration;
(ii)the carrying out of Fuel Depot activities for the Defendant and his wife without any or only nominal remuneration;
(iii)permitting the Defendant and his wife to take certain of his weekly wages;
(iv)permitting the Defendant and his wife to receive the income arising from various commercial activities undertaken by the plaintiff for his own benefit.
Then follow a series of particulars of the husbandry works, the fuel depot activities and the taking of weekly wages. The particulars of the commercial activities referred to under 6(iv) were:
The carrying out of:
(i)currant production and all necessary vine husbandry including the meeting of all costs thereof for a period of three years, and
(ii)wine grape production and all necessary vine husbandry including the meeting of all costs thereof for a period of three years, and
(iii)the cartage of the Defendant's grapes to market between 1966 and October 1993.
7.Further, between 1966 and October 1993 the Defendant and also Defendant's wife, actively and persistently repeated the said representations and thereby encouraged, and continued to encourage, the plaintiff to carry out and to permit all of the Specified Activities.
8.In reliance upon the representations and their active and persistent repetition the plaintiff did carry out and permit the said Specified Activities to the plaintiff's substantial detriment:-
Particulars of substantial detriment
(i)the loss of remuneration or adequate remuneration for all husbandry works whether on the Land, the Home Block, or Deepdale
(ii)the loss of the majority of the plaintiff's wages earned externally between 1965 and 1970, and ultimately of the plaintiff's own external employment with Swan Settlers Co‑operative
(iii)the loss of the income from the commercial activities carried out by the plaintiff in respect of currants and grapes
(iv)the loss of the opportunity to pursue the plaintiff's own commercial interests, including the development of the plaintiff's own cartage and transport business, mechanical business and the development of the plaintiff's own fruit, vegetable and grape activities, and employment with the RAC as a patrolman
(v)the loss of the opportunity to develop the plaintiff's own asset base by reason of the above.
9.Between 1966 and October 1993 the continued representations of the Defendant and also the Defendant's wife were made in the knowledge by the Defendant and his wife that the Specified Activities:
(i)had been and were continuing to be undertaken or permitted by plaintiff in consideration of and in reliance upon the representations of the Defendant and his wife, and
(ii)were to the substantial detriment of the plaintiff.
10.Despite the plaintiff carrying out and permitting the said Specified Activities the Defendant has denied and continues to deny the existence of the said interest as beneficial co‑owner, or of any interest, of the plaintiff in the said Land.

In the statement of claim the 'Land' had previously been identified as meaning the Walyunga property and the 'Home Block' was identified as referring to the Vine Street property. Particulars of the allegations of the activities were enlarged upon in further particulars, requested and delivered, but which need not here be mentioned.
By the amended defence filed on his behalf Mr Phillip Consolaro says, with respect to the Walyunga land, that:
(a)he presently lives on the land;
(b)he conducts the business of a farm, and a sandpit and soils supplier as a sole trader from that property with assistance from his son-in-law, Mr Robert Gordon, and grandson, Mr Glenn Gordon;
(c)the farm business on that land involves raising of cattle and cropping hay and the soils business comprises the sale of sand;
(d)previously, and until the death of Mrs Winnie Consolaro, he conducted the farming and soils business from that property with his wife, trading under the business names of 'P Consolaro' or 'PJ & WP Consolaro' at various times.
With respect to the Vine Street property Mr Phillip Consolaro, in his defence, pleads that:
(a)he and Mrs Winnie Consolaro were the transferors of a portion of the Home Block which included the fuel depot;
(b)except that in about November 1993 he executed a transfer of portion of the Home Block to the plaintiff, he does not know nor admit any agreement or understanding pursuant to which the plaintiff acquired that part of the Home Block and that this transfer itself was expressed to be for natural love and affection and not for monetary consideration;
(c)that the fuel depot business on the Vine Street property was at all material times carried on by Phillip and Winnie Consolaro in partnership until her death, and by Phillip Consolaro until about 1995 when, as a consequence of an acrimonious breakdown in the relationship between father and son (the plaintiff), the defendant was directed not to return to that part of the home block and has never been allowed on those premises since and that from that time on the fuel depot business ceased.
As to the allegations made by the plaintiff concerning representations that he would acquire an interest in the Walyunga property, Mr Phillip Consolaro:
•denies all the allegations;
•admits that his son Ross Consolaro intermittently carried out or permitted the Specified Activities;
•says that none of the Specified Activities was conducted or permitted as a consequence upon any reliance upon the making of the representations by the defendant or Mrs Winnie Consolaro (the making of which is expressly denied);
•admits that the plaintiff did conduct or permit 'commercial activities', 'husbandry works', and 'fuel depot activities' as generically particularised but denies the full extent thereof;
•pleads that the plaintiff was variously paid a fair or reasonable remuneration of these activities having regard to the relationship between the parties, as Italian parents and child, as pleaded further below or, alternatively, that they were conducted or permitted by the plaintiff on the basis that the plaintiff and the defendant and Winnie Consolaro (during her lifetime) were Italian parents and child as a consequence of such a relationship.
By his pleading Mr Phillip Consolaro further alleges:
a.The parties are of Italian descent and of traditional Italian upbringing.
b.It was the common understanding of the parties, as a consequence of their tradition and upbringing, and consistent with the same, that so far as reasonable or possible the children of the family (ie the plaintiff and his siblings) would be treated more or less equally taking into account the following factors:
(1)their respective levels of education and general well being.
(2)the filial relationship of the children with their parents.
(3)any benefits or advantages conferred upon the children during the life of their parents.
c.The defendant (and Winnie during her life time) did receive money for board and lodging from the plaintiff as they did from the plaintiff's siblings (but denies the full extent or quantity thereof as pleaded) such payment being again consistent with the filial relationship between those siblings and their parents Winnie and the defendant.
d.As to the plaintiff's level of education and general well being the defendant pleads as follows:
(1)From in or about 1963 (the plaintiff was then 15 years of age) the plaintiff was unemployed or working for Robert Gordon. He commenced an apprenticeship in or about 1965 which he completed in or about 1971 and had employment thereafter with various third parties.
(2)In or about 1975 the plaintiff commenced business on his own as a cartage contractor.
(3)The plaintiff is financially secure.
e.The Specified Activities were conducted or permitted by the plaintiff as a consequence not of the representations (the making of which is expressly denied) but rather was a contribution to the welfare of the family generally and as a consequence of the filial relationship between the plaintiff and his parents Winnie and the defendant.
f.As to the benefits or advantages conferred upon the children during the life of their parents the defendant refers to the following in respect of the plaintiff:
(1)The plaintiff received during the lifetime of the defendant an interest in the said Home Block for natural love and affection rather than by payment of any monetary detriment or consideration.
(2)The plaintiff has received income from the operation of the fuel depot and the sand pit businesses and further has been remunerated for his conduct of the Specified Activities.
(3)Prior to 1976 the plaintiff enjoyed board and lodging.
(4)The plaintiff has enjoyed free fuel and the use of the defendant's vehicles.
g.As to the filial relationship between the plaintiff and the defendant the defendant pleads as follows:
(1)Notwithstanding that the defendant treated the plaintiff generally as would be expected of a filial Italian parent in relation to his son, relationships between the two deteriorated to the extent that in 1995, whereupon, as a consequence of an acrimonious breakdown in relationship between the parties, the defendant was directed not to return to the part of the Home Block transferred to the plaintiff. He has never been permitted to enter upon the same since then and the fuel depot business has ceased.
(2)The plaintiff has instituted various Supreme Court proceedings against the defendant further particular[s] of which are well known to the parties.
(3)The parties are in acrimonious dispute generally concerning the plaintiff's conduct of the soils business.
h.In the premises, the plaintiff has been treated fairly and reasonably by the defendant having regard to the relationship between the two of them as Italian parent and child and is entitled to no further benefit from the defendant.
And then goes on to plead:
In the alternative if the defendant or Winnie made the representations as alleged (which is specifically denied) and if they were relied upon by the plaintiff (which is also specifically denied) then the defendant pleads further as follows:
a.The representations were made in the context of familial or domestic relationship vis as parents and child and not intended to create legally binding obligations as between them.
b.The conduct of the plaintiff in conducting or permitting the Specified Activities/husbandry works/fuel depot activities/ commercial activities (as the case may be) was not as a consequence of reliance upon the making of the representations nor was such conduct intended to form the basis for any legally binding relationships as between the plaintiff and the defendant (and Winnie during her lifetime) but was conducted or permitted (as the case may be) pursuant to and consequential upon the filial relationship between those parties as traditional Italian parents and child.
c.In the context of a familial or domestic relationship, in any event it would have been implied reasonably expected and understood between the parties as Italian parents and child that the fulfilment of such promise to confer an interest in the said Land was:
(1)based upon the underlying assumption that the said parties would at all material times continue to enjoy close familial and filial ties.
(2)implicitly conditional upon the continuation of such filial or close relationship.
d.Consequential upon the matters pleaded above, it was the common implied understanding of the parties, as a consequence of their relationship as traditional Italian parent and child, that if such relationship deteriorated or ceased then the defendant as parent would not reasonably have been expected to fulfil such promise.
e.The filial relationship between the parties ceased acrimoniously under the circumstances pleaded in paragraph 8(g) hereof.
f.In the premises, the plaintiff enjoys no entitlement to an interest in the said Land.
and otherwise denies each and all of the plaintiff's allegations and claims.
Sadly, the depth of feeling and reciprocal animosity between father and son has only increased since a major argument between them during 1995. Now all members of the family have been drawn into this controversy, sides have been taken, old enmities and prejudices have been revived and inflamed and there are no neutral corners from which even members of the third generation of the family can provide a dispassionate or objective account of events.
The plaintiff, Ross Consolaro, and his wife, Judith, have maintained that at all times they attempted to respect the wishes of the plaintiff's mother and father, to follow their directions and to assist in the operation of the family enterprise at considerable cost to themselves in the sense of other opportunities foregone and by sharing their wages and the products of their efforts within the family operations, essentially by contributing the moneys or the products of their activities to Mrs Winnie Consolaro and accepting, in return, such small allowances as she in her discretion saw fit to provide.
Although, at times, it displayed many different facets the principal features of the case for the defence were that Ross Consolaro has exaggerated the extent of the work or the contribution which he made to the family activities, that the work which he did perform resulted in fair payment to him at the time and that for considerable periods he was engaged in his own commercial activities which produced income entirely to his own account and as a result of which he was seldom available to perform the work which was expected of him as his share in the family activities. In particular, and as a great bone of contention, his father, Mr Phillip Consolaro is utterly convinced that Ross Consolaro tricked him and cheated him over the building and acquisition of Ross Consolaro's house on the Vine Street property and obtained by deceit a benefit to which he was never entitled. This is, I am satisfied, a thoroughly unfounded allegation but it is deeply and conscientiously believed by Mr Phillip Consolaro who, in his advanced age, is showing signs of obsession about this and other issues and whose evidence in this regard was quite incompatible with the objective facts.
Since 1995 Mr Phillip Consolaro has been living at Walyunga under the close care of his daughter, Mrs Norma Gordon. She too is very much opposed to the plaintiff's claim and repeats many of the criticisms laid against her brother by her father. In giving evidence it was starkly apparent that Mrs Gordon had a very great antipathy towards her brother, Ross Consolaro, and would not even refer to him by name, persistently describing him as 'the plaintiff' and showing an attitude of hostility and depersonalisation which was unmistakable. Mrs Gail Rudez was also opposed to the plaintiff's claim but was less ill‑disposed to her elder brother. The younger brother, Rodney Consolaro, who had obviously had many loud and bitter arguments with the plaintiff over the years and, on one occasion, outside the courtroom during the trial, was more measured and objective. However, he took the view that it was disrespectful towards their father for Ross Consolaro to be making this claim or bringing this action and that proper filial obligation required Ross Consolaro to respect his father and accept with proper deference any decision about the disposition of the father's property which he may choose to make.
One can understand and respect this attitude of Rodney Consolaro but I am satisfied, from seeing him give evidence and being cross‑examined, that Mr Phillip Consolaro, while harbouring very strong and firm opinions, is not objective, does not have a real appreciation of past events, has mistaken views in particular about Ross Consolaro's alleged misconduct in building the home on Vine Street, in relation to lodging caveats on that land and on the Walyunga land and in relation to other matters concerning the Walyunga property which are yet to be mentioned. Mr Philip Consolaro has for more than 12 years been closely dependent and constantly in the company of his daughter, Mrs Norma Gordon, whose attitude to the plaintiff has already been described. There is every reason to infer that Mr Phillip Consolaro's continued animosity towards his son, Ross Consolaro, has been fed and sustained by Norma Gordon and that, since her mother's death, Norma Gordon has on several occasions attempted to exercise a dominant role in the management of the family's financial and property transactions which had previously been exercised so firmly by their late mother. In this situation, the prospects of achieving paternal objectivity or securing a fair realisation of the historical facts and merits of Ross Consolaro's claims are fragile and insignificant.
The situation has been made worse by earlier litigation and legal disputes between Ross Consolaro and his father. These relate to:
(a)the lodging of a caveat on behalf of Ross and Judith Consolaro to protect their interest for their house and land, part of the Vine Street block;
(b)an attempt by the father, Mr Phillip Consolaro, to sell to third parties the whole of the Vine Street property, including the land upon which Ross and Judith Consolaro's home stood without their knowledge or permission;
(c)litigation concerning the due administration of Mrs Winnie Consolaro's estate brought by Ross Consolaro over the transfer of all of the proceeds of sale of the Bullsbrook delicatessen property to Mrs Norma Gordon;
(d)an action for damages brought by Ross Consolaro against his father because in 1995 the latter summarily evicted him from the Walyunga property where he was conducting commercial sandpit operations, resulting in the payment of agreed damages of $100,000 by the defendant to the plaintiff;
(e)the lodgement by the plaintiff of a further caveat over the Walyunga land to protect the claim advanced in this litigation.
Those various disputes are not directly determinative of any of the issues in this case but they bear very greatly upon the credit of the parties, particularly of the defendant.

Outline of land holdings from title information

The history of the Consolaro family dealings in land and the transactions relevant to this action can be taken from the details of registered dealings with those lands. It is:

The Vine Street property

(a)On 14 February 1938 Mr Phillip Consolaro lodged a caveat against the title to the Vine Street land in view of his claim to an estate in fee simple to the land as purchaser by virtue of an agreement dated 11 February 1938 made between Mr William McDonald as vendor and himself as purchaser in respect of the whole of the land then comprised in Crown lease number 308/1920 (defendant's additional documents folio 19).
The land at Vine Street then comprising 10 acres was the subject of a lease under the Agricultural Lands Purchase Act 1909 to Mr William McDonald of 5 March 1920 (defendant's document 20).

(b)On 21 May 1946 Mr Phillip Consolaro was registered as the sole proprietor of an estate in fee simple in the Vine Street land (certificate of title vol 1091 folio 56). On 24 April 1967 that land was transferred into the names of Phillip Jim Consolaro and Winnie Patricia Consolaro as joint tenants. On 13 May 1994 the land was registered in the sole name of Phillip James Consolaro by survivorship following the death of Winnie Patricia Consolaro on 17 October 1993.
A list of encumbrances to that certificate of title shows that it was mortgaged to Mr McDonald in 1920 but that that mortgage was later discharged. It was then mortgaged to the R&I Bank in 1949 and that mortgage was later discharged. It was mortgaged to the ES&A Bank in 1950 and that mortgage was later discharged. It was mortgaged to the ANZ Bank in 1967 and that mortgage was later discharged. It was mortgaged to the National Bank of Australia in 1977 and that mortgage was later discharged. An encumbrance involving a right of entry was granted to the Metropolitan Water Authority in May 1984 in respect of a margin of the land along the border with Great Northern Highway.
(c)Caveat number F243216, being the caveat lodged by Ross and Judith Consolaro was noted on the register on 8 July 1993 and this was withdrawn on 13 May 1994.
(d)A new certificate of title, vol 2000 folio 812, was issued on 13 May 1994 in respect of the 4,700 sqm lot on the corner of Great Northern Highway and Vine Street to Ross and Judith Consolaro. This was subject to the right of entry to the Metropolitan Water Authority which had been previously registered in May 1984.

The balance of the land at Vine Street, excluding the area subdivided for Ross and Judith became the subject of a further certificate of title, vol 2000 folio 83, which was also subject to the drainage rights in favour of the Metropolitan Water Authority for the remaining frontage to Great Northern Highway. That land was transferred to third party purchasers, Messrs JM, HJ and N Glovata as tenants in common in equal shares on 7 October 1996.

The Walyunga lands

Phillip and Winnie Consolaro purchased the land at Walyunga in February 1996 for slightly more than £8,000 from Messrs WR and SW Martyn. The land comprised portion of each of Swan Locations 91, 1312, 1339 and 1342, being lot 4 on deposited plan 7892 (see transfer, defendant's documents folio 24). Mr and Mrs Consolaro were registered as the proprietors of that land as joint tenants on 10 March 1966 (certificate of title vol 1309 folio 058, defendant's documents 25). They mortgaged that land to the ANZ Bank in 1972 and that mortgage was later discharged. They mortgaged it again to the National Bank of Australia Ltd in 1974 and that was also later discharged. In 1980 it was mortgaged to the R&I Bank and that also was later discharged. A portion of the land was resumed under the Public Works Act 1902 (WA) in 1980 and an area of 2.0905 hectares was excised on 27 March 1992 and transferred into the names of Louise Hope Cepo and Graham David Cepo as joint tenants (see certificate of title vol 1927 folio 634, defendant's document folio 26). This was the land which Mr Phillip Consolaro says he gave to his niece Louise, although obviously the gift was by himself and Winnie Consolaro.
The whole of the Walyunga land with the exception of the area given to Louise was transferred into the sole name of Phillip James Consolaro on 13 May 1994 by survivorship following the death of his wife (agreed volume of documents book 3 folio 806 ‑ 7).

Deepdale land

In September 1979 Phillip James Consolaro and Winnie Patricia Consolaro purchased Swan Location 1638 for the sum of $50,136.06 (see transfer, defendant's documents folio 27). They became registered as the joint proprietors of that land but transferred it to third party purchasers on 3 September 1988 (certificate of title vol 1572 folio 645, defendant's documents folio 28).

Sale of fuel business

Mr Ross Consolaro described in evidence how he became concerned about the security of his home and tenure on the Vine Street block before the subdivision had eventually been accomplished when he realised that there was a possibility that his mother and father might sell all the land to an oil company for the establishment of a service station or other retail outlet. It was this, according to him, which prompted him to have to lodge a caveat claiming an interest in the land in July 1993.
A fuel depot had existed on the site facing Vine Street for many years. It seems that in 1982 Phillip and Winnie Consolaro applied to the oil company, Ampol Ltd, for an upgrading of the refuelling facilities and that the oil company proposed the removal of two existing pumps and the installation of two new 10,000 ‑litre and the alteration of the driveway. The oil company wrote to the shire council in that respect inviting its approval for the proposed work on 8 December 1982 (agreed documents vol 3 folio 621). That elicited an acknowledgement from the Swan shire clerk and a request for payment of the fee for a development application (folio 622) but nothing else appears to have transpired at that date.
However, the fate of the fuel depot again came up for consideration in 1992 or 1993. Mr Mark Quackenbush gave evidence and provided a statement (exhibit 22) in which he explained that in the 1990s he was the managing director of Omex Petroleum Pty Ltd and that some time in 1992 or 1993 he visited premises at the corner of Vine Street and Great Northern Highway where there was an operating Ampol fuel depot and several bowsers. His purpose in making the unannounced visit was to inquire about the possibility of leasing the premises for the business of Omex Petroleum. He spoke to a man, whom he does not now recall, and as a result was invited to come again when other members of the family would be present. About a week later he made another visit and met with an elderly gentleman, an older woman, his wife, and a younger man who was their older son. The discussion concerned Mr Quackenbush's interest in the premises and what parts of the buildings and trees on the site could be demolished for his purposes He recalls that the lady was interested in the trees which would have to be removed and appeared to be content about that. At this second visit Mr Quackenbush recalls no discussion about the ownership of the premises or any part of it containing the fuel depot. He assumed that it was a family farm without any specific knowledge of the ownership. Nothing was said to him to suggest that the younger man had any ownership of the part of the premises containing the fuel depot.
The second visit concluded on the footing that the family would consider Mr Quackenbush's proposition and would contact him, but he did not hear from them again. That was his last visit.
In his oral evidence Mr Quackenbush said that at the second meeting the older man was interested in the proposal and the older lady was very interested. He was unable to say when the meeting took place but he made reference to a note of a letter of 18 June 1992 dealing with the matter. However, other evidence suggests that the meeting occurred in 1993 and I consider that the later date is more probable.
It was the apparent readiness of his parents to consider the lease or sale of portion of Vine Street which concerned Ross Consolaro and, not unreasonably, led him to be sensitive about the risk to his family home posed by the situation which then existed before any approved subdivision of his land. By then he had cause to doubt that his parents would make good on their promises and the passage of the years from 1976 without anything being done to grant him a secure interest in the land would, no doubt, have underlined the tenuous nature of his position.

The caveats

There was the caveat lodged against the Vine Street property by Ross and Judith Consolaro claiming an interest in the land to protect the portion which they had purchased from Phillip and Winnie Consolaro and upon which they had constructed their home. This caveat is dated 8 July 1993 (F243216C) supported by the statutory declaration of 8 July 1993.
The first of two caveats lodged by Ross Consolaro over the Walyunga land is dated 14 September 1995 (F981493C, agreed documents vol 3 folio 637). By this caveat Ross claimed an interest in the land in the form of a right to take sand and an accompanying right to enter the land for the removal of the sand. This was said to derive from an oral agreement made between Ross Consolaro and his father, later evidenced in writing, conferring a right to take sand from the land during the father's lifetime and thereafter. In the statutory declaration of 21 September 1995 in support of that caveat Ross Consolaro declared (see agreed documents folio 638):
2.I claim an interest in the Land, being the right to take sand and for the purpose to enter upon the Land and remove it.
3.On or about 24 October 1993 I made an oral agreement with Phillip James Consolaro ('Phillip') the registered proprietor of the Land, whereby the registered proprietor granted me the right to operate a business selling and removing sand from the Land and to enter upon the Land at any time to remove sand in consideration of paying $1 per cubic metre of the sand sold ('the agreement') to the registered proprietor.
4.In or about January 1994 Phillip offered to acknowledge in writing the existence of the agreement. Now produced and shown to me and marked with the letter 'A' is a true copy of the said writing.
Another caveat was lodged by Ross Consolaro over the Walyunga land on 5 November 2001 (H920394C, agreed volume of documents vol 3 page 612). That claimed an estate or interest in the land by virtue of an alleged agreement between Phillip James Consolaro and the plaintiff whereby, if the caveator worked the land, he would receive co-ownership asserting that the caveator had performed such obligation in the terms of the statutory declaration lodged therewith. That declaration was a declaration by Mr Ross Consolaro of 2 November 2001 (agreed documents vol 3 folio 610) by which he declared:
2.Between 1966 and 1996 and repeatedly in between those times the registered proprietors of the said land, (originally my father and mother, and since my mother's decease, my father alone) undertook to me that if I worked on the said land and carried out his instructions in that respect, I would be a co-owner of the land with him, with such co-ownership interest to be transferred to me upon his decease.
3.I did and have so worked on the said land, largely in lieu of all other forms of help (family or otherwise) on the farm, and more or less continuously, and in reliance upon such undertaking by the registered proprietor(s).
4.This work included almost daily wood yard help, mechanical work, machinery operator work, vineyard work and stock and fencing work and all ordinary husbandry associated with the farm and cartage for the registered proprietors of fuel and sand.
5.Additionally the registered proprietors during a period of approximately nine years (1966 to 1975) further repeatedly undertook that if I committed part of my wages first as an apprentice and then afterwards as contractor and employee, to be paid to the proprietor(s), that again I would be entitled to be a co‑owner of the said property.
6.Between those years (1966 ‑ 1975) I did so permit part of my wages or pay part of my wages to the registered proprietor(s) in reliance upon and consideration of their undertaking that I would be co-owner.
6.Unhappy differences have now arisen between myself and the registered proprietor, and I place this caveat as beneficial co‑owner of the land.

Norma Gordon - Dispute over the administration of Winnie Consolaro's estate

As previously noted, when Mrs Norma Gordon, her husband and family left the house in which they had been living for some years at the Vine Street property they moved to Bullsbrook. The evidence is that Mrs Winnie Consolaro purchased a property in the Bullsbrook township at which there was a house for the Gordons to live. The property was registered solely in the name of Winnie Consolaro and the evidence is that Mrs Winnie Consolaro outlaid $40,000 or thereabouts for the purchase. The Gordons moved to that home and have lived there since. From there or nearby at Bullsbrook Mrs Norma Gordon operated a delicatessen supplying a variety of merchandise in partnership with her mother.
The details of the financial arrangements for the repayment, if that was what was intended, of the money outlaid by Mrs Winnie Consolaro for the purchase of the Bullsbrook property, or the payment to her of her share of the profits of the Bullsbrook shop were not examined in this trial. However, the financial accounts for the affairs of Phillip and Winnie Consolaro up until Winnie's death in 1993 show only two references to income from the Bullsbrook shop. The accounts for that business, which are also in evidence, indicate that it was always trading at a loss yet it seems most improbable that that was so because, if it were, then surely the business would have been closed. There is nothing to indicate any other source of income or capital which would or could have been used to subsidise trading losses for a period of years for that business and I therefore cannot accept that the accounts give a completely accurate description of the position.
Be that as it may, when it came to the winding up of Mrs Winnie Consolaro's estate the land at Bullsbrook constituted an asset registered in the name of the deceased and therefore was, presumptively, part of her estate. Whether there was then any significant equity in the delicatessen business partnership by the deceased is another question but as it is impossible to ascertain, it need not be fully pursued.
It is the case however that Mr Phillip Consolaro was disposed to treat the Bullsbrook property as being the property of Norma Gordon, notwithstanding that it was registered in the deceased Winnie Consolaro's name. Any obligation for repayment of the purchase money was not investigated. Mr Phillip Consolaro therefore sold that asset and the delicatessen business and proposed to distribute the whole proceeds to Mrs Norma Gordon, without any recoupment for the estate. It is to be recalled that under Winnie Consolaro's will the four children as residuary beneficiaries were entitled to share equally in the residuary estate, subject to the life interest in favour of their father. Mr Ross Consolaro maintained that the Bullsbrook property was an estate asset and should be treated as part of the residue of his mother's estate and ultimately be divisible equally between the four children. This resulted in major disagreement with his father, and no doubt with Norma, and accordingly an action was commenced by Ross for due administration of the estate and, in particular, for a determination that the Bullsbrook property was part of the estate property. That action was ultimately compromised by payment of $20,000 to Ross Consolaro in satisfaction of any share which he might have in his mother's estate. Thereafter the proceeds of the sale of Bullsbrook were treated as belonging to Norma and ultimately transferred to her by her father as executor. It is not difficult to see how such an experience would have engendered enmity between the older sister and older brother.

The saga of Ross and Judith's home at Vine Street

The old home in which Ross and Judith Consolaro and their children had been living from 1970 at Vine Street was obviously unsuitable. Mr Ross Consolaro, not unnaturally, desired to have an adequate home for himself, his wife and his family and asked his mother and father whether or not they would agree to let him build on a suitable area of the Vine Street land to make such a home. According to him, they readily agreed and attention turned to the choice of an area for the construction of the house. According to the plaintiff, whose evidence in this regard I accept, he, and his mother and father, together chose an area on the land, stepped out the boundaries marking the corners and agreed that Ross should be allowed to build his home there but insisted that he should pay the proper market value for the land to be used, which would then become his own. According to Mr Ross Consolaro, the area chosen was relatively close to the parents' home but fronting Vine Street. The reason for the proximity was so that the occupants of the house would conveniently be able to serve at the fuel depot, close nearby, and be within easy reach of the parents in their own home. Ross and Judith Consolaro both said that they would have preferred to have the house built further away to the west but that Ross' parents were insistent that the house be closer to ensure constant service of the fuel depot. According to Mr Ross Consolaro, advice was taken and agreement between mother, father and son was reached on a figure of $3,000 as representing the market value of the proposed block of, as yet, un‑subdivided land. Mr Ross Consolaro says that he gave a cheque for the $3,000 to his mother and father, which they duly banked and, eventually, at his insistence, they provided him with a receipt for the payment of this money for the purchase of that land.
According to Mr Ross Consolaro, approaches were then made to obtain a building licence for a house which was designed and constructed by a builder, Mr Aloi. Construction began with the clearing of the area and the laying of a pad followed by the rest of the building. According to Mr Ross Consolaro, the construction of the building took somewhere between eight and 12 months and was commenced in about May 1976, just before Phillip and Winnie Consolaro left on their first overseas trip to America and Europe when they were away for about three or four months. According to him, the work had commenced before the departure on vacation of his mother and father and the foundation pad and location of the house was in place and obvious before they left. Again, according to Mr Ross Consolaro, his mother and father returned before the house was completed and it was later finished and his family moved into the new home.
The story recounted by Mr Phillip Consolaro and endorsed by Norma Gordon and her husband, Robert Gordon, was markedly different. According to them, Mr Phillip Consolaro, while willing to allow Mr Ross Consolaro to build on the Vine Street property, never agreed to sell any part of the property to Mr Ross Consolaro and never accepted any money for the purchase of a house block. According to Mr Phillip Consolaro, Ross was free to build on the Vine Street property but, if he did so, the house was to be well to the west, further down Vine Street, and some distance away from the mother and father's home and the fuel depot. Again, according to these three witnesses, no work which disclosed the intended site of Ross Consolaro's new home had been commenced before Phillip and Winnie Consolaro left on their overseas trip in May or June 1976 but then, in their absence, Ross Consolaro made arrangements to build the house in its present location where he knew his father did not wish it to be and had all the construction commenced and proceeded to a point where it could not be reversed before the parents came home. According to Mr Phillip Consolaro, he returned from his holiday to find a completed house in an area which he had never agreed upon and which was contrary to the arrangement which he made with his son. According to him, there was a heated argument about Ross Consolaro's conduct and this was never resolved and continued as a serious bone of contention between father and son from then on.
The builder, Mr Aloi, gave evidence about the construction of Ross' home, produced his account and confirmed that the construction had begun before the departure of Mr and Mrs Phillip Consolaro overseas and with the apparent approval of them. In fact, according to Mr Aloi, the application for the building licence had to be signed by Mr Phillip Consolaro and was signed and duly submitted before any work began. He too maintained that the construction work took somewhere between eight and 12 months and that as far as he was aware there was no controversy about the location of the building.
Then followed a long period of unsuccessful applications by the Consolaro family for subdivisional approval to allow the area upon which Ross' home had actually been built to be created as a separate lot, subdivided and become the subject of a separate certificate of title. The evidence established that the Shire of Swan had a policy which disapproved of the subdivision of vineyard lots in the Swan Valley into residential size lots because of the risk that approvals might lead to a change in the complexion and use of that part of the valley. Because of this policy a number of applications for subdivisional approval were refused and the position remained that, despite the arrangements which Ross maintained had led to an agreement for him to purchase land from his mother and father, and for the house to be built upon it, the land subdivided and transferred to him, he remained in occupation of the house and land which he had paid for without any secure title.
Because of this, after obtaining his own legal advice, he eventually lodged the caveat over the Vine Street property, claiming an interest as purchaser and proprietor in the area of land upon which the house had been built and which had been marked out. That caveat was lodged in July 1993 and a copy of it was found among Winnie Consolaro's papers after her death. Phillip Consolaro claimed that he never knew of the existence of this caveat, that he was appalled to find out that his son would have been advancing such a claim, and that it was part of Ross Consolaro's attempt to cheat him out of the land. He absolutely denied that he had agreed to transfer part of the Vine Street block to Ross and Judith Consolaro for their home or that Ross Consolaro had paid an agreed price for the land.
Later, Phillip Consolaro decided to leave Vine Street and go and live with the Gordons at Bullsbrook. He determined to sell the Vine Street property and attempted to do so without recognising any right of ownership or other interest by Ross and Judith Consolaro and their family, who continued to live in what they had regarded as their family home since 1976. The caveat was an obstacle to such a sale but only created more resentment and argument between father and son. A few years before, in 1990, with the intervention of a local politician, and because of the special circumstances, the Shire of Swan approved the subdivision of the Vine Street property which excised an area of approximately half a hectare on which stood Ross and Judith Consolaro's home and also the fuel depot. Nevertheless there was still a delay in acting upon it. In 1994 the subdivision went through, a title for that land was issued in Ross Consolaro's name and then Phillip Consolaro completed the sale of all the surrounding land to third parties in 1996.
In this action Mr Phillip Consolaro maintained, against all the evidence, that there had never been an agreement to sell any part of the Vine Street property to Ross and Judith Consolaro. He insisted that no payment had ever been made by Ross or Judith Consolaro to purchase any area of the Vine Street property. He returned again and again to his theme that Ross had dishonestly and surreptitiously built on the Vine Street property in an area in which he knew his father had not permitted him to build while his parents were away on vacation and that this was part of Ross' attempts to cheat him out of the land. He saw the lodgement of the caveat to protect Ross and Judith's claim to the land before the subdivision was approved as another secret and dishonourable act and he took it as a matter of great affront that his son would lodge a caveat against that land and assert such a claim. Nothing could swerve Mr Phillip Consolaro from this view and, at other times in his cross‑examination, when lost for an answer, he came back to it again and again.

At an early point of this trial counsel for the plaintiff sought to tender as exhibits what were asserted to be agreed bundles of correspondence and other relevant documents which could be treated, for the purposes of the action, as authentic and, subject to any evidence to the contrary in the case, as representing what they purported to represent. However, counsel for the defendant objected to the reception of all the documents on the basis that the authenticity of one document in particular was disputed. The document in question was folio 263 of book 1 of the documents and was a copy of a letter apparently in the handwriting of the deceased, Winnie Consolaro, and signed by the defendant Mr Phillip Consolaro dated 6 May 1976, being a receipt given by them to Ross Consolaro for payment in full for the building site on lot 2611 Herne Hill. Accordingly, the documents were accepted, except for that particular letter, as being authentic, the importance being that counsel for the defendant, on express instructions from his solicitors and client, and conscious of the possible significance of the alleged document and of the denial of its authenticity, maintained that that receipt was not genuine or authentic. This position was, of course, consistent with the plea in the defence denying any payment for that land and expressly asserting that it had been transferred as a gift.
Later the plaintiff proved in evidence a bank deposit slip dated 14 April 1976 (TD 39‑D3) showing a deposit to the credit of the account PJ and WP Consolaro in the National Bank of Australasia Ltd on that date of amount of $3,743. The details on the deposit slip showed that the deposit was a composite of six payments including an amount of $3,000 from RJ and JM Consolaro for building. The deposit slip and the notes on it were written in the handwriting of Mrs Winnie Consolaro and there are some words obliterated which appear to include the words 'for house'. Furthermore, the plaintiff also proved as exhibit 21 the original of a manuscript receipt signed by the defendant, Mr P Consolaro and Mrs Winnie Consolaro dated 16 May 1996 which reads:
Dear Sir
Mr Ross J Consolaro has paid me in full for building site on lot 2611 Herne Hill.
P Consolaro
Mrs W Consolaro
which Mr Ross Consolaro said was signed on the kitchen table at Vine Street by his mother and father at his request.
I therefore find that the account given by Mr Ross Consolaro that he and his wife purchased a defined area of land at Vine Street from his mother and father for the sum of $3,000 to be set aside and subdivided for the building of their family home is true and that this was always known to his mother and father no matter how much, in recent years, his father may have repressed that recollection or been persuaded out of it by the prejudice of himself or others. The persistence in the denial of these facts by the defendant and by Norma Gordon on an issue of such significance reflects very severely upon their credit and illustrates just how significant persistence in a false allegation has been in creating and perpetuating bitterness between those parties on this issue.
There is further contemporary evidence to show that Phillip and Winnie Consolaro were aware that Ross and Judith Consolaro had agreed to purchase an area of the Vine Street property for the construction of their home and were proceeding as discussed with the defendant's agreement. This comes in the form of:
(a)copies of entries in the Australian passport issued to Mr P Consolaro on 22 April 1976 in preparation for the trip that he and Mrs Winnie Consolaro made to the United States and Europe (defendant's additional documents folio 18). This shows that a visa to enter the United States was granted on 26 April 1976, that the bearer entered the United Kingdom on 21 June 1976 and 22 July 1976 and departed the United Kingdom on 27 June 1976 and 5 August 1976, landed in Belgium on 27 June 1976, entered the United Kingdom on 17 September 1976, departed the United Kingdom on 20 September 1976, entered Hungary in November 1976 and re‑entered Australia at Fremantle on 12 October 1976. From these travel records it is obvious that Mr Phillip Consolaro left Australia after the work on Ross and Judith Consolaro's house at Vine Street had commenced and returned well before it was completed;
(b)a building licence for the construction of the home for Ross Consolaro on Vine Street was issued on about 31 July 1976 (agreed volume of documents vol 3 folio 802);
(c)a letter from Mr Carl Aloi of Civa Design & Construction Pty Ltd, building contractors, dated 26 April 1977, being an account for the final payments due on the completion of the house for Mr Ross Consolaro (this showed that the contracted price was $25,200 plus various extras);
(d)a letter from the State Planning Commission to Mr PJ Consolaro of 4 May 1988 (agreed documents vol 1 folio 47) acknowledging receipt of an application for proposed subdivision of the Vine Street property dated 19 April 1988 and requiring the submission of scaled plans of the proposed lot;
(e)a letter of 24 November 1988 from the State Planning Commission to the shire clerk of the Shire of Swan inviting the shire's comments on the proposed application for subdivision of the Vine Street property with a sketch annexed (vol 3 folios 754 ‑ 756). This document showed that the area sought to be subdivided was fronting Vine Street to the west of Great Northern Highway and did not include the Great Northern Highway corner;
(f)an application for approval of a proposed plan of subdivision of the land at Vine Street to allow the creation of a lot as a residence for Mr RJ Consolaro. This appears at vol 3 of the agreed documents, folio 626 and is signed on 22 September 1990 by Mr P Consolaro and Mrs W Consolaro and was lodged with the Department of Planning and Urban Development on 25 September 1990;
(g)another letter from the Department of Planning and Urban Development to the shire clerk of the Shire of Swan dated 3 October 1990 inviting comment upon the proposed plan of subdivision for the Vine Street property with a plan annexed (agreed vol 3 folios 757 ‑ 759). This showed that the area to be subdivided was an area fronting both Vine Street and Great Northern Highway at the north-eastern corner of the property;
(h)an extract from the minutes of the Statutory Services Committee of the Shire of Swan for 19 November 1990 (agreed documents vol 3 folio 760 recording an application for subdivision of the Vine Street property by P and W Consolaro for the purposes of creating a lot of approximately 4,400 sqm incorporating the fuel depot, a residence and a shed. The minutes recorded that the applicant had made five previous applications for subdivision which had been refused and that a fuel depot had been operating from the north-east corner of the lot since 1955. The recommendation of the committee was that the application should be approved;
(i)a statutory declaration was made by Ross Joseph Consolaro and Judith Marylin Consolaro on 8 July 1993 in support of a caveat which they lodged claiming an interest in the Vine Street property for the land which they had purchased in 1975 and upon which they had built their home and in respect of which they declared that it had been agreed that the land could be subdivided so that the portion of the land that they paid for could be put into their sole names. That statutory declaration and the caveat were lodged at the Land Titles Office on 8 July 1993 and the statutory declaration was lodged later. Notice of the caveat would, in the ordinary course, have been sent by the LTO to the registered proprietors and at least Mrs Winnie Consolaro must have been on notice of this in the light of the discovery of the caveat among her papers after her death;
(j)an application for a new certificate of title for the lot emerging from that subdivision was signed by Mr P Consolaro on 11 December 1993 and lodged at the Land Titles Office (agreed volume at folio 627);
(k)a plan of the entire area of the Vine Street block showing the location of the house to be erected, undated (agreed documents vol 1 folio 43) with more details at folio 44;
(l)certificate of title showing the new land registered in the name of Ross and Judith Consolaro being the land running along Vine Street to the corner of Great Northern Highway in accordance with the last plan of subdivision submitted to the shire and approved.
All this shows that there was, in fact, payment of $3,000 made by Ross and Judith Consolaro to Phillip and Winnie Consolaro for the purchase of a block on Vine Street in April 1976, that the house was constructed by an independent building firm over a period of 10 or 12 months from 1976 to 1977, that Phillip and Winnie Consolaro were away on their overseas travel from May or June 1976 to November 1976, but that the work had commenced before their departure.
It is apparent that after 1976 there were many efforts to obtain subdivisional approval for the creation of the lot which Ross and Judith Consolaro had paid for but these struck objections at the Shire of Swan leading to repeated applications and slightly different proposals being submitted in the names of the registered proprietors, Phillip and Winnie Consolaro. Despite this, in 1993, shortly before Winnie's death, Ross and Judith Consolaro had reason to fear that Phillip Consolaro might sell the land to an oil company and therefore lodged a caveat to protect their asserted interest. Notice of the caveat was given to the registered proprietors and a copy of the caveat was found among Mrs Winnie Consolaro's papers after her death.
I have been unable to discover any plausible foundation for the allegation by Mr Phillip Consolaro that his son Ross Consolaro cheated him out of an interest in the land at Vine Street by building his house while Phillip and Winnie Consolaro were away and without authority. I also observed that Mr Phillip Consolaro only very grudgingly acknowledged that it was, indeed, his signature on exhibit 21 (the receipt of April 1976 for the payment of the $3,000) and then in circumstances where it was apparent that he had been denying the existence of any such payment for a long time. Just what has led Mr Phillip Consolaro to reach such an unjustified conclusion and to have become so prejudiced against his son Ross I cannot say, but it is apparent that he generally conceives that in some way he was tricked over this transaction and that Ross defrauded him. I am satisfied that this is an utterly wrong view of the facts and I cannot accept that Mr Phillip Consolaro did not know at the time that proper financial arrangements had been made and that the house and land which Judith and Ross Consolaro built and its position had been agreed by him and his wife. In some way or another his memory and recall of events has become distorted. In his current state of confusion he seems to have forgotten or repressed any such memory and he is consumed by his unjustified sense of grievance. I consider that this misplaced grievance has been exploited by others, particularly by Mrs Norma Gordon, because of her close association with and responsibility for Mr Phillip Consolaro in recent years.
It is quite evident that Mr Phillip Consolaro was a very hardworking man and one most disinclined to spend money on himself or for unnecessary purposes. No doubt his circumstances and those of his family meant that it was necessary for them to be very careful about money but the record of events makes it clear that both he and Mrs Winnie Consolaro were very stinting when it came to expenditure and were constantly asserting that Ross and Rodney would have to make do on the limited amounts of money that Mrs Winnie Consolaro was prepared to allow to them out of the family pool. They justified this on the basis that all the hard work and effort was being done for the benefit of the children but a habit of frugality and a deep suspicion of claims for payment became the normal outlook. Accordingly, when it came to honouring promises there was clearly quite a gap between the precept and the practice.

More on the construction of Ross Consolaro's home at Vine Street

Judith Consolaro confirmed that the building of the house started before Phillip and Winnie Consolaro went overseas on their holiday and continued while they were away. She had not wanted to build on the Vine Street property at all. She had wanted Ross to buy elsewhere off the property but it was Winnie and Phillip who chose the block stepping out the area on an occasion when Ross, Judith, Winnie and Phillip were all present together.
The builder Mr Carlo Aloi confirmed that the construction of the building had commenced before Phillip and Winnie Consolaro departed on their holiday and said that before then they had signed a building approval form and a site plan had been lodged with the shire. Mr Aloi often spoke to Phillip and Winnie Consolaro about the construction of the house and it was evident to him that they were fully aware of the site and the purpose of the building. Their son‑in‑law Robert Gordon was employed to do the brickwork on the house. Mr Gordon had been a bricklayer for Mr Aloi for 10 years. Mr Aloi impressed me as a careful, reliable, truthful witness with good recall and an even outlook staying neutral in what he obviously knew was a long running family dispute. He was not cross‑examined in any way to suggest that his testimony was false or contrived. A statement of his evidence had been prepared and exchanged before the trial (exhibit 19) and is dated 14 February 2008. He gave his oral evidence at the trial on 11 March and, accordingly the defendant and his counsel had ample notice of the substance of the evidence which Mr Aloi was to give.
However, when giving evidence Mr Robert Gordon maintained that the building of the house on Vine Street was commenced while Phillip and Winnie Consolaro were away. It is uncertain whether he may only have been referring to the brickwork but he said that he believed that no sand pad had been made or bricks delivered before the parents had departed on their trip. I do not accept this. Mr Gordon made a number of allegations in his oral evidence to the effect that Mr Aloi had lent his builder's ticket to Ross Consolaro to allow Ross to build the home and that Mr Aloi had said to him that the job was being done for Mrs Winnie Consolaro. I reject Mr Gordon's evidence in this respect. He made a poor impression, displayed obvious partisanship with his wife and father‑in‑law and displayed a dismissive condescending attitude towards his brother‑in‑law the plaintiff. I do not accept Mr Gordon as a reliable or trustworthy witness and note that he attempted to be domineering when giving evidence and was overly pedantic. Significantly none of his allegations about the conduct of Mr Aloi were put to Mr Aloi by the defendant's counsel in cross‑examination. His readiness to asperse Mr Aloi and the attitude which he displayed towards the evidence of Mr Ross Consolaro and Mrs Judith Consolaro showed that he was far from independent or objective.
In her responsive statement (exhibit 20B) Mrs Norma Gordon said that she was living at her parents' house at Vine Street when Mr and Mrs Phillip Consolaro went away on their trip in 1976. She maintains that they left on 15 May 1976 without being able to recall why she remembers their departure being on that date. According to Mrs Gordon she looked after the home and the business while her parents were away. She said that Ross' statement that the house pad had been laid and that bricks were on the site before their parents left on the trip is false. Mrs Gordon maintains that no construction work started or brick deliveries were made until Phillip and Winnie Consolaro had left on their trip. Again, however, I do not accept this as I consider the evidence of Mr Aloi to be reliable on this issue. More to the point the evidence of Mr and Mrs Gordon in this respect has been led in support of the claim by Mr Phillip Consolaro that neither he nor his wife knew or approved that the house was to be built where it was located and had not given permission for that to occur. Again, I do not accept this because of the need to obtain building approval and various permits which Mr Aloi and Ross Consolaro have all said were done and which were signed, at least by Mr Phillip Consolaro, before the work commenced and before his departure. In par 29 of exhibit 20B, Mrs Gordon refers to the 'deposit' for $3,000 being received on 14 April 1976 which is a reference to the payment made by Ross Consolaro for what he says was the purchase of a lot on Vine Street for the location of his home. In her principal statement, exhibit 20A relating to this payment, Mrs Gordon had said at par 71:
I see on 14.04.76 there is an entry 'RJ & JM Consolaro $3,000' was part of a deposit of $3,743 with the words 'not earnings' written there. Mother left for a trip in May 1976 and returned later in October 1976. I was present when Ross and mum discussed loaning $3,000 to mother. I did not see Ross give her the $3,000.
Such a description of the transaction is entirely inconsistent with the written receipt of 6 May 1976 (exhibit 21) which refers to a payment in full for building site on Lot 2611. Mrs Gordon did not address the point of whether the money was ever repaid. I can only consider her evidence in this regard to be an attempt to explain away the bank deposit for $3,000 which is recorded in defendant's exhibit D1 and, in that regard it disregards the manuscript note 'building (obliterations) house'.
When these incongruities are seen in the context of the defendant's initial denial of the authenticity of the manuscript receipt, on which I have previously made some observations, I can only conclude that this is an attempt to explain away a fact which is plainly inconsistent with the defendant's version of how Mr Ross Consolaro's house came to be built. It reflects very badly upon the credit of Mrs Gordon and it confirms that the defendant's entrenched view of this transaction is a false and obsessive one.

The big family row

Kyli Consolaro (now Mrs Kyli Peet), the daughter of Ross and Judith Consolaro, had her 21st birthday on 9 April 1995. A family party had been arranged at Vine Street and party lights and other illuminations had been put up in the shed for the occasion. However on that day there was a major argument between Ross Consolaro and his brother‑in‑law Robert Gordon and his sister Norma Gordon. Such an outburst seems to have been brewing for it is obvious that there was considerable mutual hostility between Ross Consolaro and Norma Gordon which had existed for quite some time before and which was increasing over events occurring in the administration of Winnie Consolaro's estate and over the discovery that Ross and Judith Consolaro had placed a caveat on the Vine Street land to secure their interest and in pressing for the subdivision which had then only recently been achieved.
It seems that Ross Consolaro had asked Robert Gordon to remove some vehicles and equipment which had been stored in the shed which was then on Ross Consolaro's land. Robert Gordon had refused to do so whereupon Ross Consolaro threatened to move them with a front‑end loader. Mr Gordon's response was to go to the old family house which controlled the electrical supply to the shed and remove fuses which cut off the electricity to the lights and other facilities which had been installed for the party. Ross Consolaro's response was to remove electrical fuses from the shed which supplied the fuel depot and the bowsers so that they would not operate. All this may sound petty but it was no doubt symptomatic of the depth of feeling and animosity between the individuals at that point. One of the results of the argument which broke out was that Ross Consolaro then ordered Norma and Robert Gordon off the property and forbade them to return which meant that Norma Gordon would no longer be able to operate the fuel depot. She indicated that she did not want to continue it anyway because it was not worthwhile and the fuel depot stopped trading from then on.

I am also satisfied that the eventual resolution of the subdivision at Vine Street leading to Ross and Judith Consolaro becoming registered as the proprietors of an area of land upon which the fuel depot and the shed stood was another sore point between him and the Gordons. As stated, up until 1995, Norma Gordon had been operating the fuel depot for some years. I am satisfied that this led to friction between Ross Consolaro and his elder sister and that the relationship between Mrs Judith Consolaro and Mrs Norma Gordon was not good either. Having become registered as the proprietor of the newly subdivided block, Ross Consolaro fenced it off and that too was seen as an act of provocation. It all came to a head at Kyli Consolaro's 21^st birthday party on 9 April 1995 when Robert Gordon refused the plaintiff's request to remove machinery and equipment which had been stored in the shed, which quickly led to a shouting match and then to a disconnection of the electricity supply which in turn led to the plaintiff ordering Norma and Robert Gordon off the property in the presence of his father.
From then on the situation quickly cascaded into greater difficulties and animosities. Mr Phillip Consolaro decided to move from Vine Street and go and live with Norma Gordon and her family at Walyunga having sold the balance of the old vineyard to third persons. Norma Gordon then suggested to her father that the division of the revenues from the sandpit at Walyunga was not appropriate and that Ross Consolaro was receiving too much money at his expense. This led to the meeting with Mr Edwick, the accountant, in which the accountant told Mr Phillip Consolaro that he was asset rich and cash poor and that he had a cashflow problem. His statement in exhibit 23 that the defendant was entitled to a reasonable return on his investment in the sandpit can only be referable to some enquiry or allegation raised with him that the sharing of the revenues from the sandpit was unsatisfactory.
Quite soon after that there was the episode in which Mr Phillip Consolaro ordered the plaintiff off the Walyunga farm, suspended all arrangements in relation to the sandpit operations and refused to speak to his son even at a meeting which the solicitors had specifically arranged in the hope of resolving the family differences. He has never spoken to the plaintiff since and the resolution of the plaintiff's second action for damages over an alleged breach of the contractual arrangements for use of the sandpit resulted in a payment of $100,000 being made to Ross Consolaro. The animosity displayed by the father towards the plaintiff when giving evidence was remarkable and the more pitiful because it was so unreasoning and obsessive. It is clear that the family has been driven into two camps and that those who were regularly seeing or living with the defendant have adopted his attitudes and repeated his criticisms. It is an open question as to whether or not Mr Phillip Consolaro's prejudices have been fed and maintained by the actions of the Gordon family. The probability is a real one.
Against all this there was never any satisfactory explanation given or attempted as to why Ross Consolaro was accused of exploiting his father over the sandpit operations or why he should be so summarily excluded from the major remunerative activity which he had pursued with his mother's and father's approval over the preceding five years. That was simply a no‑go area as far as the defendant was concerned. The prospect that he may be called upon to explain his conduct and that he was obliged to pay $100,000 to settle the ensuing legal action only made his obduracy more entrenched.
On these major issues, therefore, I have concluded that in major respects the credibility of Mr Phillip Consolaro, the Gordons and to a lesser extent other members of the family who have supported the defendant's case is lacking. Although I have given this next step careful consideration, I see no reason why the adverse conclusions which I have formed in relation to those distinct issues should not also be applied to issues of credibility concerning the representations said to have been made to the plaintiff and the overall operation of the family enterprises from 1970 onwards. I do not consider that I have been given trustworthy accounts from the other witnesses insofar as they have sought to diminish or refute Ross Consolaro's claims of continued working at the farm on the strength of the promises made to him by his mother and father. I do, however, think that around the margins there has been some inaccuracy in the extent of the amount of work claimed to have been done and payments acknowledged, but in the overall proportion of the controversies these are only very minor and of no great significance. The real point is that on the faith of the promises made by his mother, which I am satisfied were specific and known to induce detrimental reliance, Ross Consolaro forsook a number of other employment opportunities and continued to work on the farm to a far greater extent than other members of the family and without reasonable remuneration for that work.

The plaintiff's submissions

The plaintiff relied on Ramsden v Dyson (1866) LR1HL 129, 170 ‑ 171 per Lord Kingsdown which passage was discussed and applied by Brinsden J in Cameron v Murdoch [1983] WAR 321, 351 and on Gregory v Mighell (1811) 18 Ves 328; (1811) 34 ER 341. In particular, the plaintiff relied on the following passage from Cameron v Murdoch (351):
Some additional points which emerge from a consideration of the cases are these. Equity arising from expenditure of land need not fail merely on the ground that the interest to be secured has not been expressly indicated: Plimmer v The Mayor and Councillors of Wellington (1884) 9 AC 699 at 713; Inwards v Baker [1965] 2 QB 29, 36 ‑ 7. The court must look at the circumstances in each case to decide in what way the equity can be satisfied: Plimmer v The Mayor and Councillors of Wellington at 714; ER Ives Investment v High [1967] 2 QB 379 at 395, 400; Morris v Morris [1982] 1 NSWLR 61 at 64. The equity is based on circumstances which would make the exercise by the defendant of his lawful rights unconscionable: Ward v Kirkland [1967] 1 Ch 194 at 235; Inwards v Baker at 37 ‑ 8, Jackson v Crosby (No 2) (1979) 21 SASR 280 at 298; Siew Soon Wah v Yong Tong Hong [1973] AC 836 at 845. Equitable estoppel is not confined to certain specific categories: Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd [1981] 1 All ER 923, at 935, 936. The doctrine of estoppel by acquiescence is not restricted to cases where the representor was aware both of his own strict rights and that the representee was acting in the belief that those rights would not be enforced against him: Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897. Where relief is to be given by way of compensation in respect of improvements effected that compensation may be at present day values: Jackson v Crosby. The burden of proof that the representee did not rely on the representation lies upon the representor: Greasley v Cooke [1980] 3 All ER 710 at 713. It is not necessary to prove detriment but it is sufficient if the party to whom the assurance is given acts on the faith of it, in such circumstances that it would be unjust or inequitable for the party making the assurance to go back on it: Greasley v Cooke at 713, 714 and 715.
The plaintiff also relied on a passage of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 674 for a description of what conduct, action or inaction would in equity preclude the defendant from exercising his strict legal rights.
In the present case I am satisfied that the plaintiff Ross Consolaro did over many years, and with increasing irritation and arguments with his parents, continue to work on the family lands and for the family businesses if not full‑time, nevertheless to a substantial degree, and performed much additional voluntary activity to advance the family enterprise which the father and mother conducted in partnership. It is clear that on a number of instances he tried to break away from the family and make a life and career of his own. These episodes have been described and I accept them. Each time, however, he was reeled back to the family fold by the demands or entreaties of his mother and these, with the sense of obligation which he felt, were enough for him to accept the parental assurances that he would be made a co‑owner of the lands with them.
I am satisfied that these assurances were given on the occasions particularly described by the plaintiff but that there was, generally speaking, repeated references or allusions to them - many times when Ross Consolaro expressed dissatisfaction at being expected to work for relatively low wages or return. There is really no other reason why he would have persevered in continuing to work as he did. It also has to be recalled that although he had paid for the land and the construction of his family home at Vine Street, he had no title to the land and therefore could not sell it or mortgage it had he wished to make an independent career of his own away from the family. He was very much tied to the land with little other economic choice and this became an even greater tether as time wore on, contributing to his sense of grievance and the occasional acrimony with his parents. That he got into this position at all can be explained only because of his reliance upon his parents' promises.
The representations which he has identified in his statement of claim and which I am satisfied have been proved, include the representations made in 1970 when the plaintiff was working for H & R Martin & Sons and was asked to come back and work at the vineyard property. Similar representations were made in 1971 when he sought to work at Midland Brick but was diverted from that employment by his mother's entreaties. Representations to the same effect were made in 1972 which expressly referred to the farm at Walyunga. All those were made before Ross and Judith Consolaro purchased an interest in the vineyard land by paying the $3,000 in April 1976 and thereafter paid for the construction of their home on that land.
I accept that representations to the same effect were made to Ross Consolaro by his mother in about 1992 when he was persuaded to come back and work at the farm so that Rodney Consolaro could go and work at Swan Settlers. I am also satisfied that Ross raised the matter with his father shortly after his mother's death in 1993 and was told that the father would keep his promises and that he should proceed to continue to work at the Walyunga land and particularly at the sandpit.
Not only is this account of events credible when viewed from the point of view of Ross, it also makes sense if looked at from the perspective of Mr and Mrs Phillip Consolaro. They needed help and assistance in doing a whole variety of farm work, mechanical work and carting for the family operations but could not afford to pay proper wages for it. The only hope of having the work done to allow the family enterprises to continue as they hoped they would was to have somebody perform that work on sub‑economic terms. No one but a close relative could be expected to do this and the only incentive which could be offered to a relative was a promise of eventual participation in the benefit derived from the retention of the ownership of the property. The parents had no other currency which they could offer to their son and it was obvious that a tangible inducement was necessary to persuade him to work on the family enterprises in a manner which would be far less remunerative for him and his family than paid external work.
I do not consider that there can be a precise determination of the exact amount of work which Ross Consolaro, or for that matter Rodney Consolaro or others, performed in the various family activities from about 1964 until 1995. Too much time has gone by, there are few reliable records, and the mutual family hostilities have since become so intense that the oral accounts which have been given are not fully objective. Nevertheless, I consider that the plaintiff did work on the various enterprises largely as set out in exhibit 4, notwithstanding that there may be some overstatements in that attempted reconstruction. In other words, I am satisfied that Ross did work continually on family operations for all periods from the early 1960s up until 1995, notwithstanding that for the periods which he has identified he was also engaged in business for his own personal remuneration.
Ross Consolaro's increasingly strident demands for a subdivision of the vineyard land to give him security for his home and for better remuneration became increasingly irritating to his parents in the years before Mrs Winnie Consolaro's death. However, the blame for this cannot be solely attributed to the plaintiff. His wife and children were in an extremely delicate position when it came to their interest in the house and land at Vine Street upon which they were living and which had not been subdivided or transferred to them. The plaintiff obviously recognised the extreme vulnerability of his position when he learned that some thought might be given by his parents to selling or leasing part of the land to the Omex Oil Company for a fuel station. His apprehensions were not unjustified because, without him knowing it, his parents had mortgaged the whole of the property repeatedly since he had built the house to finance the overall family operations including the acquisition of Deepdale. The plaintiff was right to fear that his father would not respect his interest in the vineyard property because, after the mother's death, Mr Phillip Consolaro, as sole owner by survivorship of the Vine Street property, attempted to sell the whole of the land (including the area where Ross' home was located), to third party purchasers. It was only Ross Consolaro's caveat that saved him from the potential of losing the land altogether but the father was irritated that the sale was held up and that he had to pay rent to the purchaser until the subdivision had gone through and the balance of the land could be transferred.
Without intending to seem insensitive to Mr Phillip Consolaro with his present age and infirmities, it is clear that he did not respect his children's rights. He regarded himself, with his wife's approval, entitled to make any decision whatever about the farming properties and he treated his children as being obliged by honour, to accept whatever he did and to trust in his wisdom and justice for the decisions which he would make. However Mr Phillip Consolaro was not able, and is not able, to make such wise and impartial decisions because of the obsessive and mistaken attitude which he has about the plaintiff's conduct particularly regarding the building of the plaintiff's home at Vine Street and about his eviction of Ross Consolaro in 1995 from any participation in the sand business at Walyunga. Even now during this trial, there was no attempt to justify the decision taken by the father to evict Ross from the sand mining operations. There was an aggrieved acceptance that the legal position had been vindicated by the payment of $100,000 but no appreciation of the major disruption which this had caused or that the eviction was unjustified. This is just one of several aspects which demonstrates that the defendant sees events only through his own distorted lens and that his resentment towards the demands of the plaintiff are due, to a large degree, not to any lack of merit, but because of the defiance, and lack of respect which he believes the plaintiff's demands reveal. It is a very sad story indeed but whatever the family animosities may be and however insensitively the plaintiff may have behaved to his mother and father, in the later years, I consider that he has demonstrated an equity which should be made good in view of the years which have passed, the opportunities which the plaintiff has foregone and all the work which he has done for meagre returns on the family properties.
The plaintiff approaches this case not on the basis that there should be some kind of quantum meruit equity which recognises the value of his contributions to the land over the years. That false complexion of the plaintiff's claim is one which the defendant has tried to meet by much evidence designed to dilute the extent and value of the work performed by the plaintiff on the properties. Rather, the plaintiff's claim is that specific assurances were made, firstly, that his name would be placed on the family titles as an equal owner with his parents, and that it was these which were relied upon and engendered an expectation that the plaintiff would become, in effect, a tenant in common to the extent of one equal third undivided share in the properties.
By 1992 when another of the representations was made by Mrs Winnie Consolaro and Ross came back to the land exchanging jobs at Swan Settlers with Rodney, the Deepdale farm had been sold and all that was left was the property at Vine Street and the farm at Walyunga. The representations then made were referable to a third interest in both those properties. By the time Mrs Winnie Consolaro died and there were discussions between Ross and his father in late 1993 or early 1994 about continuing the sand mining operation, and when the father said that the promises would be honoured, the representation was obviously referable to the Vine Street property and to Walyunga.
Since then all of Vine Street, except for Ross and Judith Consolaro's subdivided block, has been sold. A small part of Walyunga had previously been subdivided and given to Louise Cepo and her husband. However the plaintiff does not seek to make anything of this or to claim any greater interest than a one equal third share in Walyunga. Had that promise been fulfilled before Mrs Winnie Consolaro died then Walyunga would have been registered in the names of Mr and Mrs Phillip Consolaro, presumably as joint tenants as to two one‑third undivided equal shares and Ross Consolaro as a tenant in common of one equal undivided third share. In that eventuality Mr Phillip Consolaro would have acquired his wife's one‑third joint interest by survivorship on her death and would be entitled to be registered as a tenant in common with Ross Consolaro as to two undivided equal shares with Ross having the remaining one-third undivided equal share. It is on this basis that the claim for a one‑third share has arisen and is maintained.
A question arises as to the mortgage encumbrance on Walyunga which presently exists. That is the mortgage to Westpac Banking Corporation No C945764. Whether that is an encroachment on the equity claimed or not, the plaintiff does not seek to maintain that the defendant should be solely liable for that mortgage or that adjustment should be made on the footing that he is. The plaintiff is content to take a one‑third undivided interest as tenant in common subject to the mortgage and, if anything, this is a concession on his part. Nor does he seek any relief in relation to the small area of five acres which has been excised and given to his cousin Louise Cepo and her husband.
I am satisfied that the plaintiff has made out his claim and that he is entitled to a declaration and orders to the effect that the defendant, Phillip Consolaro, holds the whole of his interest in the Walyunga property, subject to existing encumbrances, in trust for himself as to two undivided third shares as tenant in common and as to one undivided share as tenant in common in favour of his son Ross Joseph Consolaro. If necessary, orders can be made requiring the execution of any transfers or other instruments necessary to allow the plaintiff to become registered for his one‑third interest in that land or, at the plaintiff's election, to be paid compensation equal to a one‑third value of the land, less encumbrances, at the time when such compensation is to be calculated and paid.

I will hear from the parties as to the precise form of orders, declarations or other relief which should be made to give effect to this decision.