Consolaro v Consolaro
[2002] WASC 92
CONSOLARO -v- CONSOLARO [2002] WASC 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 92 | |
| Case No: | CIV:2898/2001 | 16 APRIL 2002 | |
| Coram: | ROBERTS-SMITH J | 26/04/02 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | PHILLIP JAMES CONSOLARO ROSS JOSEPH CONSOLARO |
Catchwords: | Real property Torrens System Caveat Removal Whether lodged without reasonable cause Transfer of Land Act 1893, s 140 Onus of proof Compromise of earlier proceedings Consent judgment Whether same interest claimed Whether claim barred Deed of release and discharge Compromise of proceedings Whether operates as bar to subsequent claim of equitable interest in land to support caveat Res judicata Anshun estoppel Whether claim of interest in land barred by consent judgment in earlier proceedings Procedure Limitation period Whether claim of equitable interest in land a claim in contract Applicable limitation period Whether right of action accrued |
Legislation: | Limitation Act 1935 (WA), s 4, s 5, s 12, s 24, s 38(1)(c)(v) Transfer of Land Act 1893 (WA), s 140 |
Case References: | Baumgartner v Baumgartner (1987) 164 CLR 137 Beatty v Guggenheim Exploration Co (1919) 225 NY 380 Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 Blair v Curran (1939) 62 CLR 464 Bolton v Excell, unreported; FCt SCt of WA; Library No 930175; 7 April 1993; [1993] ANZ Conv R 562 Carroll v Azolio Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998; [1998] ANZ Conv R 485 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Custom Credit Corporation v Ravi Nominees Pty Ltd (1992) 8 WAR 42 Deputy Commissioner of Taxation v Corwest Management Pty Ltd & Anor [1978] WAR 129 Ebber v Isager [1995] 1 Qd R 150 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 Eng Mee Yong v Lutchumanan [1980] AC 331 Gill v Gill (1921) 21 SR (NSW) 400 Greenhalgh v Mallard [1947] 2 All ER 255 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR(NSW) 69 Jackson v Goldsmith (1950) 81 CLR 446 Kais v Turvey (1994) 11 WAR 357 Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 McMahon v McMahon [1979] VR 239 Muschinski v Dodds (1986) 160 CLR 583 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rogers v Legal Services Commission (1995) 64 SASR 572 Rogers v R (1994) 181 CLR 251 Taddeo v Catalano (1975) 11 SASR 492 Thoday v Thoday [1964] P 181 Commonwealth Bank of Aust v Garon Pty Ltd [1999] WASC 170 Executive Seminars Pty Ltd v Peck & Ors [2001] WASC 229 Giumelli v Giumelli, unreported; SCt of WA; Library No 930491; 10 September 1993 Jandric v Jandric [1999] WASC 22; (1999) ANZ Conv R 614 Mason v Clarke [1955] 1 All ER 914 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROSS JOSEPH CONSOLARO
Defendant
Catchwords:
Real property - Torrens System - Caveat - Removal - Whether lodged without reasonable cause - Transfer of Land Act 1893, s 140 - Onus of proof - Compromise of earlier proceedings - Consent judgment - Whether same interest claimed - Whether claim barred
Deed of release and discharge - Compromise of proceedings - Whether operates as bar to subsequent claim of equitable interest in land to support caveat
Res judicata - Anshun estoppel - Whether claim of interest in land barred by consent judgment in earlier proceedings
Procedure - Limitation period - Whether claim of equitable interest in land a claim in contract - Applicable limitation period - Whether right of action accrued
(Page 2)
Legislation:
Limitation Act 1935 (WA), s 4, s 5, s 12, s 24, s 38(1)(c)(v)
Transfer of Land Act 1893 (WA), s 140
Result:
Application dismissed
Category: A
Representation:
Counsel:
Plaintiff : Mr R R Cywicki
Defendant : Mr M S Barrett-Lennard
Solicitors:
Plaintiff : Godfrey Virtue & Co
Defendant : M S Barrett-Lennard & Co
Case(s) referred to in judgment(s):
Baumgartner v Baumgartner (1987) 164 CLR 137
Beatty v Guggenheim Exploration Co (1919) 225 NY 380
Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106
Blair v Curran (1939) 62 CLR 464
Bolton v Excell, unreported; FCt SCt of WA; Library No 930175; 7 April 1993; [1993] ANZ Conv R 562
Carroll v Azolio Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998; [1998] ANZ Conv R 485
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Custom Credit Corporation v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Deputy Commissioner of Taxation v Corwest Management Pty Ltd & Anor [1978] WAR 129
Ebber v Isager [1995] 1 Qd R 150
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510
Eng Mee Yong v Lutchumanan [1980] AC 331
(Page 3)
Gill v Gill (1921) 21 SR (NSW) 400
Greenhalgh v Mallard [1947] 2 All ER 255
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR(NSW) 69
Jackson v Goldsmith (1950) 81 CLR 446
Kais v Turvey (1994) 11 WAR 357
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
McMahon v McMahon [1979] VR 239
Muschinski v Dodds (1986) 160 CLR 583
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rogers v Legal Services Commission (1995) 64 SASR 572
Rogers v R (1994) 181 CLR 251
Taddeo v Catalano (1975) 11 SASR 492
Thoday v Thoday [1964] P 181
Case(s) also cited:
Commonwealth Bank of Aust v Garon Pty Ltd [1999] WASC 170
Executive Seminars Pty Ltd v Peck & Ors [2001] WASC 229
Giumelli v Giumelli, unreported; SCt of WA; Library No 930491; 10 September 1993
Jandric v Jandric [1999] WASC 22; (1999) ANZ Conv R 614
Mason v Clarke [1955] 1 All ER 914
(Page 4)
1 ROBERTS-SMITH J: By originating summons dated 12 December 2001 the plaintiff seeks:
"1. A Declaration that Caveat H920394 which is registered on Lot 5 on Plan 7892 being the whole of the land comprised in Certificate of Title Volume 1927 Folio 635 ('the Caveat') has been lodged without reasonable cause pursuant to Section 140 of the Transfer of Land Act 1893 (Western Australia) ('the Act').
2. A Declaration that the reasons stated by the Defendant in the Defendant's Statutory Declaration dated 2 November 2001 as the basis for lodging the Caveat are the same as the Deed dated July 2001 between the Plaintiff and Defendant and Rodney James Consolaro, and if so, [sic: that] the caveat is without reasonable cause pursuant to Clause 4.1 and 4.2 of the Deed.
3. An order that the Defendant do within seven (7) days after service of the order upon him remove the Caveat.
4. An order that the Defendant pay the costs of the proceedings on a solicitor and own client basis to be taxed or in the alternative pursuant to Section 140 of the Act."
2 The plaintiff is 91 years of age. The defendant is his eldest son, who is 54 years of age. I shall refer to them as the father and the son respectively.
3 The application is made pursuant to s 140 of the Transfer of Land Act 1893 WA ("the Act"). That section provides that:
"140. Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order."
4 Brinsden J explained the ingredients which must be established to make out a claim under s 140 in Deputy Commissioner of Taxation v Corwest Management Pty Ltd & Anor [1978] WAR 129 at 142. The applicant must show first there has been a caveat lodged, secondly that it
(Page 5)
- was lodged without reasonable cause and, thirdly, damage must have been sustained thereby. His Honour pointed out that unless the plaintiff can prove all these three factors then he cannot succeed in a claim under the section. As to the last ingredient, his Honour said:
"The inquiry which the court is obliged to assume in relation to the ingredient concerning reasonable cause is not, as I see it, limited to whether or no the caveator has made out the claim of an interest or estate in the subject land as protected by the caveat. There may be circumstances in which, though the estate protected by caveat has not been made out, a court could still find the caveat not to have been lodged without reasonable cause."
6 With respect, I accept the analysis of Wheeler J in Carroll v Azolio Pty Ltd, unreported; SCt of WA; Library No 980004; 19 January 1998 at 6 that there may be an absence of reasonable cause for the purposes of s 140 of the Act in at least two circumstances. The first is that the person lodging the caveat may not have an honest belief based upon reasonable grounds that a caveatable interest exists. The second is, alternatively, that even if the person believes such an interest to exist (and even if it does in fact exist) the person may nevertheless lack reasonable cause if the caveat is lodged for an ulterior purpose rather than for the protection of the caveatable interest.
7 Upon whichever alternative the plaintiff relies, the onus is on him to prove that the caveat was lodged without reasonable cause (per Malcolm CJ in Bolton v Excell, supra, at 5).
8 The plaintiff initially submitted that the onus is upon the defendant to establish his rights to a caveatable interest, citing Eng Mee Yong v Lutchumanan [1980] AC 331 at 337, but in oral argument conceded that was not so on an application pursuant to s 140 of the Act.
9 The plaintiff contends that the caveat has been lodged without reasonable cause and is not maintainable, on four grounds.
(Page 6)
10 The first is that earlier proceedings instituted by the son against the father in Supreme Court action CIV 1862 of 1996 ("the 1996 proceedings") involved identical issues and subject matter and as those proceedings were compromised by a deed of release and discharge dated July 2001 ("the deed of compromise") and pursuant to that compromise the proceedings were discontinued on 5 November 2001, the compromise and discontinuance bar reliance on the interest now claimed to support the caveat.
11 Clause 3 of the deed of compromise releases and discharges the father from all liability whatsoever in respect of, relating to and in consequence of or in connection with the dispute the subject of the 1996 proceedings.
12 The dispute is itself defined by the deed of compromise to refer to the matters in dispute between the same parties in the 1996 proceedings.
13 Counsel for the father submits that in order to ascertain what the earlier dispute entailed, the Court must do so objectively by examining the pleadings and affidavits filed in those proceedings so as to identify the salient issues and the surrounding factual matrix. It was submitted that if that is done there is apparent a sufficiently discernable common thread between the dispute compromised in the 1996 proceedings and the alleged caveatable interest as presently claimed by the son, as to give rise to the conclusion that the rights claimed now include rights previously claimed by the son in the compromised earlier proceedings.
14 The second ground relied upon is res judicata. The father relies upon the fact that the compromise was given effect to by a consent judgment of this court.
15 The third ground is an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589), the contention being that to the extent the son's present claim relies upon wider issues than those the subject of the 1996 proceedings, they are so closely related that they ought properly to have been raised in those proceedings and the son is estopped from raising them now.
16 The fourth and final ground is that the son's claim of a legal interest in the father's land is to be characterised as a claim for breach of contract in August 1995 and if that be so the claim is now statute barred by s 38(1)(c)(v) of the Limitation Act 1935 (WA) ("the Limitation Act").
(Page 7)
17 The son's response to each of these grounds is, in substance, that the interest now relied upon by the son to support the present caveat is entirely separate from and pre-dates the facts and circumstances upon which he relied in, and which were the subject of, the 1996 proceedings.
18 To determine this it is necessary to look at the nature of the interest now claimed as supporting the caveat and the subject matter of the 1996 proceedings.
19 The son relies upon his own affidavit sworn and filed on 15 February 2002 and in the main on the affidavits of Pino Anthony Monaco sworn on 5 and 18 March 2002 respectively.
20 The father relies upon his own affidavit sworn and filed on 7 March 2002.
21 Mr Cywicki contends that the starting point of the dispute which led to the earlier proceedings was a letter from the son's then solicitors, Greg Hocking & Associates, to the father dated 25 August 1995. In that letter the solicitors wrote:
"Our instructions are that some years ago your son Ross and yourself entered into an oral agreement to work the sandpit on land jointly owned by your late wife and yourself.
The agreement was that Ross would do all the work associated with operating the pit as a business and you and your wife would be paid royalties for the sand used.
Some years after this agreement was made, the fact that this oral agreement existed, was recorded in a document signed by you both.
That document confirms that this business arrangement was to continue during your lifetime and thereafter the royalties were to be paid to your estate.
You later became the executor of your late wife's estate.
Under the terms of her will you were granted the right to the income of your wife's estate. You are also presently holding your late wife's estate as trustee for Norma Adelaide Gordon, Gail Lucille Rudez, Rodney James Consolaro. Part of that estate includes the sandpit.
(Page 8)
- Thus, you are entitled to all of the royalties which were previously paid to you and your wife jointly.
Ross has an interest in your late wife's estate and thus in the sandpit as one of her beneficiaries.
We are instructed that recently you have become upset with Ross and have taken steps to prevent him from continuing to carry on the sandpit business."
22 From that point the solicitors relate certain facts which they assert demonstrated the father's intention to exclude the son from access to the sandpit and any involvement with its operation. They complain those actions were inconsistent with the business agreement between him and his son and advise that, unless some amicable resolution is found, the son would initiate an action for breach of contract seeking damages.
23 The father's response to this came in the form of a letter from his then solicitors, Corinne Griffin & Co, dated 4 September 1995. In that, the solicitors noted that the son seemed to be under a misapprehension that he had some interest in the land by virtue of the contents of his late mother's will. However, they wrote that all times since the property was purchased by the plaintiff's parents they owned the property as joint tenants and accordingly when his mother died his father became the sole registered proprietor of the land by survivorship.
24 The solicitors then went on to mention a number of other issues in dispute between the parties, relating to, for example, the son retaining possession of a tractor claimed by the father. They noted the deteriorating relationship between the son and other family members and suggested there be an informal meeting to discuss the current problems.
25 In a letter to Corinne Griffin & Co dated 13 September 1995, the son's then solicitors addressed a number of issues. Mr Cywicki submits that in this letter the son asserted, inter alia, an interest in the land by virtue of his contribution over the previous 40 years.
26 The first issue raised related to the trusteeship of the plaintiff's late mother and the proper accounting for trust assets, being the proceeds of sale of her delicatessen located at Great Northern Highway, Bullsbrook. The dispute was as to the payment of the proceeds of sale to the plaintiff's sister Norma, who had lived with their father since shortly after the mother's death. It was said that Norma was claiming a partnership between her mother and herself in the delicatessen and that therefore she
(Page 9)
- was entitled to have half the proceeds of the sale as her share in the partnership and that only the remaining half share would be available for distribution under the mother's will. The son was disputing the alleged partnership and alleging a breach of trust.
27 The next matter referred to concerned the business agreement between father and son in relation to the sandpit. The complaint was that the father had purportedly terminated the relationship and prevented the son from carrying on his business of working the sandpit on the property and by painting out the son's sign, locking the gate and re-advertising the business under the father's name. There was further discussion about the role of other family members in this activity. The assertion was that the son was now suffering considerable financial loss through his inability to keep the sandpit business operating and that he would have to seek employment or another business. The issue of the tractor was then addressed and the solicitors advised the son would return the tractor and keys as there was no prospect of the business arrangement being continued whilst he was denied access to the site.
28 Then came the following paragraphs upon which Mr Cywicki relies:
"Our client's concern is that the foregoing events and the fact that Phillip has been induced to make a new will removing him as executor appears to him to foreshadow an arrangement to deprive him of any benefit under Phillip's will.
Our client says he has contributed to the maintenance and development of his parent's property without reward for over 40 years.
He has a legitimate expectation to receive a fair share in the property for a lifetime's effort the benefit of which Phillip has now obtained.
If Phillip wants to fairly recognise that contribution Ross should be at least one of the executors under Phillip's will and Ross should be given at least an equal share in Phillip's property with his other siblings.
If Phillip wants to restore the relationship with Ross he will need to recognise Ross in a fair and proper manner in his will and in any other arrangements he makes as to his property.
(Page 10)
- Unless Phillip is willing to do that, there is no prospect of the relationship being restored and Ross will have to resort to legal action at the appropriate time to have his legitimate claims recognised."
29 It is common cause that on 14 September 1995 the son lodged Caveat No F981493 against the land. The estate or interest being claimed was described as:
"An interest in the land, being the right to take sand and for that purpose to enter upon the land and remove it."
- The interest was claimed by virtue of:
"An oral agreement made between the registered proprietor and the caveator, which was later evidenced in writing, whereby the caveator was granted the right to take sand from the land during the registered proprietor's life time and thereafter."
31 He deposed further that in or about January 1994 his father acknowledged in writing the existence of the agreement. A copy of that was attached to the statutory declaration. It is brief. It states simply that:
" I, Phillip James Consolaro and my eldest son, Ross Joseph Consolaro, have entered into an agreement, where as Ross Joseph is to work the sandpit as a sandpit and maintain the front-end loader for as long as he shall desire, paying royalties to me, Phillip James.
This agreement will remain valid after my demise, where as the royalties will then go towards the expenses of the property."
32 It is also common ground that the son issued proceedings in 1996.
33 In his amended statement of claim dated 10 April 2001, after introductory pleadings describing the parties and their relationship and the land, the son pleads (in par 6) that he had worked on the land more or less
(Page 11)
- continuously for the benefit of his father and late mother from about 1953 until her death on 17 October 1993. He pleads (par 7) that since his mother's death he had worked on the land continuously for the benefit of his father until about July 1995 and in par 8, that from about January 1993 until his mother's death he was employed by his father and late mother to negotiate and supervise contracts for the sale of sand from the sandpit and was paid a wage by them contingent upon sales of sand made by him.
34 In par 9 he pleads that following his mother's death he informed his father that he no longer intended to work on the land and his father then offered to make a mutually acceptable arrangement whereby he would continue to do so.
35 Then, at par 10, the son pleads that at about 24 October 1993 he and his father entered into an oral agreement, the terms of which were then set out in some detail but essentially gave the son the right to operate the sand mining business from the land on certain conditions, which included that he would continue to undertake general farm work on the land for no additional payment.
36 Mr Cywicki draws particular attention to par 11 of the amended statement of claim, which pleads that at the time of making the agreement the father represented to the son that by reason of it and, in particular, the son's undertaking to continue doing general farm work on the land for no additional payment, that in his will he would grant the son a greater proportion of the land than to his siblings, as the father wanted the land to be retained and for the son to continue to work on it after the father's death.
37 Paragraph 12 of the amended statement of claim refers to the written acknowledgment of the agreement in January 1994.
38 In pars 13 – 15 inclusive are pleaded details of the son's activities, expenses, work and payments to the father in the performance of his obligations under the agreement pleaded. Paragraph 16 pleads that in August 1995 the father breached the agreement by denying the son access to the land for the purposes of the business and demanding the return of keys to the loader and sandpit.
39 It is unnecessary to refer to the balance of the amended statement of claim, save the prayer for relief.
40 Mr Cywicki points to par (a) of the prayer for relief which claimed a declaration that the son has an interest in the land which is supportable
(Page 12)
- (sic) by caveat F981493 and, inter alia, in par (c), an injunction restraining the father from transferring or otherwise altering or disposing of his interest in the land until its ultimate beneficial transfer pursuant to the administration of his estate following his death.
41 Mr Cywicki submits that all of this and the evidence generally shows that the interest claimed by the sum in the first caveat and in the earlier proceedings was much wider than merely being a claim for a profit à prendre arising out of the sandpit agreement.
42 In further support of this submission he relies upon an affidavit of the son sworn in August 1996 in support of an application pursuant to s 138 of the Act for an order directing the Registrar of Titles to defer registering any dealings with the land.
43 That affidavit runs to some 62 paragraphs, excluding annexures. The first 15 paragraphs describe the relevant familial relationships and the history of the son's relationship with his parents and the land. At par 17 he refers to an agreement that he re-open the sandpit and work for his parents and the subsequent paragraphs detail his performance of that agreement, the deterioration of his relationship with his father and his complaint that since August 1995 he has been excluded from the land and prevented from operating the business.
44 The father filed in the 1996 proceedings an amended defence, set-off and counterclaim, on 24 April 2001. In substance, he there pleaded that although there was an agreement in respect of the sandpit it was only that the son continue to operate it as the father's business. It was further pleaded that the son had failed to carry out the terms of the agreement, had failed to pay or account to the father for moneys received from sales of sand and denied that the son had suffered any loss. Generally similar allegations were the foundation of the counterclaim.
45 On 15 June 2001 the son filed a reply contesting the amended defence, set-off and counterclaim.
46 The 1996 proceedings were settled by way of compromise in July 2001. The parties executed a deed of release and discharge ("the deed of compromise") that contains the provisions one would expect. In particular, it provided that on payment of an amount of $100,000 by the father to the son and the dismissal of the counterclaim, the son released and discharged the father in respect of all liability in respect of, relating to, in consequence of, or in connection with the dispute; there was provision that the parties must not at any time take or continue any action
(Page 13)
- or proceeding or make any further claim or demand similarly relating to or arising out of the dispute. The "dispute" was defined in the schedule to the deed as:
"The Plaintiff in the Supreme Court proceedings CIV 1862 of 1996 has claimed pursuant to an oral agreement made the 24th November 1993 and/or a written agreement dated January 1994 (the Agreement(s)) a declaration that he has an interest in the said Land being a profit a prendre in the said land at Lot 5, Walyunga Road, Bullsbrook being a right to take sand from and operate in his own name the sandpit thereon, an injunction to prevent the First Defendant from denying the Plaintiff access to the land for this purpose, an injunction preventing the First Defendant from transferring or otherwise altering or disposing of the interest of the First Defendant in the land, an account of all monies earned by the First Defendant from the sandpit on the said Land, damages and specific performance The First Defendant has denied the Plaintiffs claims and the relief sought by the Plaintiff, and has set-off and counterclaimed against the Plaintiff seeking damages for breach of one or more of the Agreement(s) and in negligence and an account of profits earned by the Plaintiff from the sandpit on the said Land. The Plaintiff has denied the First Defendants claims and the relief sought by the First Defendant."
48 On 7 November 2001 the son lodged Caveat No H920394 against the same land ("the second caveat"). That is the caveat which is the subject of these proceedings.
49 The estate or interest being claimed is noted as "co-owner in fee simple". The interest is described as claimed by virtue of:
"An agreement between the registered proprietor and caveator, whereby if the caveator worked the land, he would receive co-ownership, and the caveator performing such obligation, in the terms of the statutory declaration lodged herewith."
(Page 14)
50 The statutory declaration dated 2 November 2001 filed in support of the second caveat relevantly stated that:
"2. Between 1966 and 1996 and repeatedly in between those times, the registered proprietor(s) 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 said 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 woodyard help, mechanical work, machinery operator work, vineyardwork 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 9 years (1966 to 1975) further repeatedly undertook that if I permitted 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 entiutled [sic] 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. [sic] Unhappy differences have now risen between myself and the registered proprietor, and I place this caveat as beneficial co-owner of the said Land."
51 On 14 December 2001 the father's solicitors wrote to the son's present solicitors, M S Barrett-Lennard & Co, saying that in their opinion the son does not have a caveatable interest in the land and that the caveat had been lodged without reasonable cause. They went on to state that the
(Page 15)
- grounds for lodging the caveat are the same as the terms of the deed of July 2001. They claimed this constituted a breach of s 140 of the Act and gave notice that the caveat was to be immediately withdrawn and their client claimed compensation and costs. They advised that the present proceedings had been issued.
52 The solicitors referred to the earlier proceedings and the compromise of them and then wrote:
"Taking into account the facts it appears that your client has for personal and family reasons and with mala fides lodged the caveat to cause his aged father unwarranted distress and anxiety and that you have assisted him knowing the history of the litigation and the consequences of the caveat ... "
- They were giving notice that unless the caveat was withdrawn, the father reserved the right to claim damages against the solicitors personally on an indemnity and solicitor/client basis.
53 The son's solicitors rejected those claims and contentions by letter dated 20 December 2001. They pointed out that the earlier proceedings and the compromise were in relation, and confined, to the claim of an interest in land being a profit à prendre expressly described as the right to take sand and operate the sandpit from the land. The claim underlying the second caveat was said to be quite different and was founded on work done by the son between 1966 and 1993 in consideration of him being entitled to co-ownership of the land, that interest to be transferred to him upon the decease of his parents and further based on them keeping moneys from his wages for the same purpose and pursuant to the same promise.
54 The son's solicitors said there was an "inadvertent and possibly misleading element of the statutory declaration" in that while it was true that the work and promises were made between 1960 (sic: 1966) and 1996, so far as the caveat was concerned only the work, wages withholdings and promises prior to the agreement of 24 October 1993 are relevant. They acknowledged and conceded that all subsequent work, contributions and promises the subject of action CIV 1862 of 1996 were settled by the deed of compromise of July 2001.
55 They maintained the son's legal right to secure the pre-1993 interest claimed, by the second caveat.
(Page 16)
56 In his affidavit dated 7 March 2002 the son states that the second caveat was placed by him to protect an interest in the land arising as a consequence of the contribution of his own moneys towards the payment of the purchase price of the land and of many years of his effort and labour towards the development of it, in consideration of promises made by his father and late mother.
57 He deposes that the circumstances surrounding that claimed interest came to an end in 1993 when he refused to carry out the personal farm and vineyard work he had been previously undertaking for them on the basis of their assurances of him having an interest in the land. It was at that point in time and circumstance, he says, that events occurred which led to him lodging the first caveat and issuing action CIV 1862 of 1996 against his father.
58 The son deposes that those events essentially were that, following upon his refusal to continue contributing his labour towards the land, his father made a suggestion in late 1993 and then entered into an oral agreement with him in October 1993 (finally acknowledged in writing in January 1994) to the effect that the son would operate the sandpit on the farm for his own benefit and have the right to remove sand from it until the father's death, that he would pay his father a royalty for sand removed and, inter alia, that he would recommence contributing his labour towards the husbandry and development of the land on the basis that he would have a share in it.
59 The son then sets out in considerable detail the facts and circumstances upon which he relies to support his claimed interest in the land. It is sufficient for present purposes to note that they date from what he says his work and financial contributions were from about 12 years of age throughout his life until in 1993, following the death of his mother, he told his father he was no longer prepared to work on the land on that basis.
60 It is not for me in the present proceedings to make any determination whether that claim is made out; I accept that if the facts and circumstances were to be found as alleged by the son, they would in law be capable of supporting the interest claimed. The question for me in these proceedings is simply whether or not the son can now make that claim or whether he is barred from doing so because of the earlier action and deed of compromise.
(Page 17)
61 There can be no doubt that if the matters upon which the son relies to support his interest grounding the second caveat fall within the description of "dispute" in the deed of compromise then he would be precluded from raising or relying upon them in that way, or at all, by virtue of the deed of compromise itself.
62 I accept the submission made on behalf of the son that the terms of the first caveat and the statutory declaration supporting that are explicitly and exclusively confined to an interest in relation to the sandpit and right to take sand. They simply speak of nothing else.
63 The previous letter dated 25 August 1995 from the son's then solicitors is clearly directed entirely to the issue of the sandpit and its operation as a business. While it is true that the letter of 13 September 1995 raises a number of discrete issues of which the sandpit is only one, that was written in circumstances in which the family relationships had clearly broken down, the attempted informal discussion had proved unsuccessful and the solicitors were outlining all of the issues outstanding between the parties and in respect of which claims might be made.
64 I accept Mr Cywicki's submission that the effect of the deed of compromise is a matter of construction. In this case, the dispute is defined in the deed of compromise to be the matters the subject of the 1996 proceedings. I agree it is necessary to examine the pleadings and affidavits filed in the 1996 proceedings so as to identify the salient issues and the factual matrix, but it is, I think, apt to approach the question on the basis of what facts and legal issues would necessarily have been found or not, to determine those proceedings and that will turn (where there are no reasons for decision, as with a consent judgment) on the pleadings (Jackson v Goldsmith (1950) 81 CLR 446, 467; Rogers v R (1994) 181 CLR 251, 263; Ebber v Isager [1995] 1 Qd R 150, 151).
65 According to the definition of the "dispute" in the deed of compromise itself, it was the subject of proceedings CIV 1862 of 1996. The interest claimed by the son in the land as justifying the declaration sought in the 1996 proceedings, was a profit à prendre further described as being a right to take sand for the purpose of operating the sandpit business. This was claimed pursuant to an oral agreement of November 1993 and/or a written agreement dated January 1994. In either instance that agreement, it is clear, concerned only the conduct of the sandpit business. The father's defence, set-off and counterclaim were likewise confined to the same agreement(s) but alleged (inter alia) a failure of the son to account to the father. It is true that the son also
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- claimed a wider interest in the land which was said to arise out of his agreeing to continue his husbandry and general working on the land on the assurance of his father that that would give him a greater entitlement to it than his siblings, in due course, but that was asserted to be part of the agreement reached in 1993 and related to what was allegedly done pursuant to it thereafter.
66 Neither in the definition of the "dispute" in the deed of compromise itself nor anywhere in the pleadings of the 1996 action, is there any interest in the land claimed by the son arising out of work done by him on the land nor moneys paid by him in respect of it, prior to October 1993. Nor is it suggested that the later claimed interest is an artificial or arbitrary severance of part of a continuous arrangement or course of conduct extending from 1966 to November 2001. I accept that to the extent mention is made of pre-1993 matters in the 1996 proceedings, that is only by way of historical background to describe the relevant relationships and circumstances which obtained in 1993 and thereafter, that is, to set the context in which the agreements of 1993 and 1994 were said to be made.
67 I reject the submission made on behalf of the father that there is a "sufficient discernable common thread" between the dispute compromised in the 1996 proceedings and the caveatable interest now claimed by the son to support the second caveat, as to give rise to the conclusion that the rights now claimed by the son are rights which were included in those claimed in the compromised 1996 proceedings. I turn now to the argument on res judicata.
68 As explained at [190-40] of Halsbury's Laws of Australia (Vol 12):
" A final judgment by a competent tribunal may affect subsequent proceedings between the same parties in three different ways. First, the judgment extinguishes any cause of action which is the subject of the decision. If established, the cause of action is said to merge in the judgment; if rejected, the parties are estopped from claiming that the cause of action exists. Consequently, no further proceedings may be brought as between the parties or their privies to enforce that particular cause of action. This effect is referred to as 'res judicata' or 'estoppel per rem judicatam'. Secondly, the judgment of the court is a conclusive determination not only of the ultimate finding in the case but also of all the issues necessary to the decision. Hence, an issue of fact or of law so determined cannot afterwards be raised between the same parties or their
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- privies in subsequent proceedings brought to pursue some other claim or cause of action. This effect is referred to as 'issue estoppel'. Thirdly, the decision may preclude the parties or their privies from raising in future proceedings causes of action or issues which they could and should have raised in the former litigation. This extension of the doctrines of res judicata and issue estoppel is referred to as 'Anshun estoppel'." (footnotes omitted)
69 Thus, where judgment has been given upholding a cause of action, the latter is merged in the judgment. If the cause of action was held to have failed, the unsuccessful plaintiff cannot bring it again (Blair v Curran (1939) 62 CLR 464, 532; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510, 512; Thoday v Thoday [1964] P 181, 197 – 198).
70 The scope of the plea was explained by Sommerville LJ in Greenhalgh v Mallard [1947] 2 All ER 255:
" ... res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but ... it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
71 I accept Mr Cywicki's submission that a plea of res judicata may operate in bar even where no investigation of the merits of the previous proceedings has been made by the court. In Rogers v Legal Services Commission (1995) 64 SASR 572 Landers J said at 595 that:
"There are circumstances where a plea of res judicata will be good, even though there has been no investigation of the merits of a matter by the Tribunal. In cases where consent orders or judgments were entered, notwithstanding that the court has been relieved of the obligation of carrying out the investigation, that consent judgment will operate as a bar to subsequent proceedings based on the same subject matter."
- (See also Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR(NSW) 69, 75).
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72 In Rogers, the plaintiff's prior action had been dismissed. That order had been made as a consequence of a ruling that the statement of claim, on its face, disclosed no cause of action. Landers J (with whom Cox and Prior JJ agreed) pointed out (at 596) that that was therefore the only matter that had been decided in the first proceedings and that no finding had been made as to any fact, nor as to the availability of any cause of action. It could not be said that the cause of action had merged into a judgment.
73 In the present case there was a consent judgment dismissing both the son's claim and the father's set-off and counterclaim. As a consequence, no further proceedings can be maintained on the same cause of action (Jackson v Goldsmith (1950) 81 CLR 446 per Fullagar J at 466 (dissenting, but not on the principle)).
74 As I have indicated above, in my view the "subject matter of the litigation" in the 1996 proceedings was in substance the profit à prendre to operate the sandpit business on and from the land. It was that which was said to be the caveatable interest. Proof of the claim required only proof of the alleged agreement or agreements between father and son, confined only to the conduct of the sandpit business. Even taking the pleadings at their widest, as encompassing (other) work done by the son on the land after October 1993 as giving rise to a claimed interest in the land as a whole, that relates to the alleged 1993/1994 agreements. The son concedes any such claim for contribution made by him post-1993 is barred by the deed of compromise. In my view there is merit in Mr Barrett-Lennard's submission that any interest in the land claimed by the son arising out of work done and moneys paid by him in reliance upon undertakings given by his parents prior to October 1993 were not issues or facts which were part of the subject matter of the 1996 proceedings. True it is they gave historical context, but nothing which happened prior to October 1993 could properly be described as "part of the subject matter of the litigation".
75 It is not the case here that the son's cause of action founded on his pre-1993 contribution could be said to have merged with the judgment which determined the issues arising out of the 1993/1994 agreement(s) (cfChamberlain v Deputy Commissioner of Taxation, supra).
76 In short, in my view the principle of res judicata does not bar the claim now advanced by the son in support of the second caveat.
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77 Similar considerations apply in relation to the father's reliance upon an Anshun estoppel. That principle prevents a party raising in subsequent proceedings, matters which ought properly to have been raised in prior proceedings. In determining whether the principle applies, a court will consider whether it was unreasonable for the party now purporting to raise the issue, to have refrained from raising it in the first action and whether a conflicting judgment or increased costs would result from the subsequent litigation.
78 On behalf of the father it is submitted that the claim now made by the son in support of the second caveat would have provided a "perfect defence" to the father's counterclaim in the 1996 proceedings. It is submitted that the issue now sought to be raised by the son was plainly open to be agitated in the 1996 proceedings and accordingly the Anshun estoppel principle now prevents him embarking on a fresh claim forming the basis of his caveatable interest. The submission is in the end that it would be unreasonable, costly and unjust to permit the son to re-agitate issues which have been settled (or, as I understand it, which ought to have been settled).
79 Mr Cywicki further elaborated on this submission by describing a profit à prendre claim as analogous to a tenancy, so that if the plaintiff was claiming breach of an inferior right (that is a right to occupy or a profit à prendre) by denial of a right of entry to the land, it would "defy logic" for him not to claim any higher right (for example, an equitable interest in the land) which would meet that. He submits this is squarely what the situation was in Anshun.
80 I do not accept Mr Cywicki's submission that the present case is similar to Anshun. That was an action by a workman for damages for personal injury arising out of the use of a crane. He sued the hirer and owner of the crane. Under the hire agreement the hirer agreed to indemnify the owner against any claims that might be made against it arising out of the use of the crane. The defendants served notices of contribution on each other. The owner made no claim against the hirer under the indemnity. The worker was successful against both defendants. Damages were apportioned 90 per cent as against the owner and 10 per cent as against the hirer. The owner then brought a separate action against the hirer claiming under the indemnity. The order of the judge staying that action on the ground that the claim under the indemnity should have been raised in the original action and so the owner was estopped from raising it, was upheld by the High Court.
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81 In the High Court it was held that it was unreasonable for the owner not to raise the indemnity claim in the first action because it was a defence to the hirer's claim for contribution and was so closely connected with the subject-matter of that action that it was to be expected the owner would raise and rely upon it. Furthermore, a judgment in the second action upholding the indemnity would conflict with the judgment entered in the contribution proceedings (per Gibbs CJ, Mason and Aiken JJ at 602 – 604). On the point of "unreasonableness" the members of the majority said (at 602, ibid) that:
"Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac. (1876) 94 US [24 Law. Ed. at p 199]."
82 In my view it was not unreasonable for the son not to raise his pre-1993 claim in the 1996 proceedings. As I have noted, those proceedings were concerned with a discrete dispute about a specific agreement as to the operation of a particular business on the land, and an agreement relating to general husbandry work to be done by the son from October 1993. The nature of that claim was wholly different from an equitable claim to an interest in the land deriving from the son's contribution upon a quite different basis and which arguably would not crystallize in any event unless and until the father either conveyed the land to another during his lifetime or failed to recognise the son's interest in his will upon his death.
83 Nor would there be any conflict between judgments. A judgment either upholding or rejecting the son's claim of an equitable interest in the land of the nature now claimed in support of the second caveat, that is, based on his alleged contributions prior to October 1993, would not say anything about whether or not there was an agreement between the parties about the operation of the sandpit business or the terms of it, nor whether he had any interest arising out of contributions made pursuant to an agreement in October 1993, from that date.
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84 The final submission made on behalf of the father was that the son's claim now made is outside the limitation period.
85 The way this is put is that he said the son is claiming a legal interest in the father's land based on a contract entered into between them between 1966 and 1996. On the son's case of course the relevant period would be between 1966 and 1993. Mr Cywicki's argument then goes that if one has regard to par 51 of the son's affidavit sworn 15 August 1996 and filed in the 1996 proceedings in which he asserts that his father has refused to allow him to enter upon the land and/or to operate the business since August 1995, it is clear that any contractual cause of action of the son would have accrued at that time, which is the time of the alleged breach by the father of the agreement(s). That being the case, any such claim by the son to enforce such contractual right is now statute barred by virtue of s 38(1)(c)(v) of the Limitations Act.
86 The father's submission here is predicated on the characterisation of the son's claim as contractual. That certainly was the nature of the claim of the 1996 proceedings in respect of the sandpit business. But it is not a proper characterisation of the claim now advanced by the son to support the second caveat. That claim seems to me to be of an interest arising in the land by way of either a resulting trust (to the extent it is claimed to be express) or a constructive trust (to the extent it is said to be the product of certain circumstances). It is put as a claim that the father, as holder of the legal title, has held and developed the land in circumstances in which he must in good conscience be taken to hold the beneficial interest, at least in part, for the son, so that equity converts him into a trustee (see Cardozo CJ in Beatty v Guggenheim Exploration Co (1919) 225 NY 380, applied by Mason J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 108).
87 The substance of the son's claim was that over some 40 years until late 1993 he worked on the land and helped develop it on assurances by his parents – and particularly his father – that on the father's death the land (or a larger proportion of it) would be left to him. It is asserted that money due to him was appropriated by his father towards the land on the same assurance.
88 Thus it is put by counsel for the son that he has an equitable interest in the land arising from one or more of the equities of part performance, promissory estoppel, unconscionable conduct or constructive trust. It is not for me on the present application to make any determination whether or not the son's claim would succeed. It will be enough for present
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- purposes if it raises a serious question to be tried (Eng Mee Yong v Letchumanan [1980] AC 331, 337; Custom Credit Corporation v Ravi Nominees Pty Ltd (1992) 8 WAR 42, 44 – 45). On the facts relied upon by the son covering the period 1966 to October 1993, the claim is at least arguable – see Muschinski v Dodds (1986) 160 CLR 583, 614 per Deane J; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148; Gill v Gill (1921) 21 SR (NSW) 400; Taddeo v Catalano (1975) 11 SASR 492 and McMahon v McMahon [1979] VR 239.
89 Ipp J canvassed a number of the authorities in which equities in land were held to arise in favour of persons who had expended money or effort on property in reliance upon assurances or expectations that they would be entitled to the property, or to live on or have some interest in it, in Kais v Turvey (1994) 11 WAR 357, 390 – and see also Malcolm CJ at 360 – 362. These would tend to support such a claim by the son here.
90 Section 4 of the Limitation Act provides that no person shall bring an action to recover any land other than within 12 years after the time at which the right to bring such an action shall have first accrued.
91 "Land" is defined in s 3 of that Act as including, inter alia, all corporeal hereditaments whatsoever and any estate or interest in them whether freehold or otherwise.
92 The time at which a relevant right is deemed to have accrued for the purposes of s 4 is stipulated by s 5 of the Limitation Act.
93 The paragraph which appears to be relevant here is s 5(e):
"When the person claiming such land ... has become entitled by reason of any forfeiture or breach of condition, then such rights shall be deemed to the first accrued when such forfeiture was incurred or such condition was broken."
94 However, all paragraphs of s 5 are subject to the proviso at the end of the section which states that the right to bring an action to recover any land shall not be deemed to the first accrued until such land is in the actual possession of some person not entitled to it.
95 Reference must also be had to s 24 of the Limitation Act which provides that no suit in equity is to be brought after the time when the plaintiff might have brought an action at law. The equitable jurisdiction is otherwise saved by s 28.
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96 The effect of s 24 it seems to me, is to bring the son's present claim within s 12, with the consequence that the limitation period would be 12 years from the time his right accrued. Whether the father's actions in 1995 or 1996 amounted to a breach of condition, or whether that would not occur unless and until he were to dispose of the land by will or otherwise without giving the son the benefit of his alleged contribution to its acquisition and development over the years, or whether the proviso to s 24 applies in any case, makes no practical difference for the purposes of the present application. At worst, from the son's perspective, the limitation period would not expire until 2007 or 2008; at best, it has not yet begun to run.
97 There is accordingly no substance to this ground of the father's application.
98 It follows from the foregoing that the son is not precluded from now claiming an interest in the land based upon the facts and circumstances relied upon prior to October 1993 and that the father has not established that the second caveat was lodged without reasonable cause.
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