Cresswell v Cresswell
[2016] VCC 1716
•21 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-15-03071
| COREY CRESSWELL | Plaintiff |
| v | |
| CHARLES JAMES CRESSWELL | First Defendant |
| and | |
| GAIL ANNE CRESSWELL | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26, 27, 28, 31 October 2016 | |
DATE OF JUDGMENT: | 21 November 2016 | |
CASE MAY BE CITED AS: | Cresswell v Cresswell | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1716 | |
REASONS FOR JUDGMENT
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Subject: Specific Performance; Equitable Remedies; Constructive Trust
Catchwords: Residential property purchased by parents for rental to son and daughter; application for specific performance of alleged sale agreement with son; whether agreement reached; whether property held by parents as constructive trustees or under a common intention trust; whether unconscionable for parents to deny existence of beneficial interest in property in favour of son.
Legislation Cited: Section 225 of the Property Law Act 1958; s37 of the Evidence Act 2008
Cases Cited:Radaich v Smith (1959) 101 CLR 209; Rivers v Hague (1837) MS cited in Best on Evidence, 3rd edition, s641; P’Auer Ag v Polybuild [2015] VSCA 42; Brogden v Metropolitan Railway (1877) 2 App Cas 666; Vroon BV v Fosters Brewing Group Ltd [1994] 2 VR 32; Empirnall Holdings Pty Ltdv Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Judgment: Within 14 days of this day the parties must bring in short Minutes to give effect to these reasons. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Northrop | Williams Winter |
| For the Defendants | Mr K Mihaly | Eales & Mackenzie |
HIS HONOUR:
Background
1 This proceeding concerns a dispute between a son and his parents as to ownership of a residence in the inner northern Melbourne suburb of Brunswick. The plaintiff, Mr Corey Cresswell, was born in 1977 (Transcript “T” 144, L6), being the middle child in this family. His older brother, Robbie, was born in 1972 and his sister, Tamarand, was born in 1981. (Ibid L5, 7-8) Their parents have lived at all times in the Broken Hill area. (Ibid L9-12) Mr and Mrs Cresswell, during their lives in the Broken Hill area, operated a number of different businesses including a caravan and boat centre, providing services to film and television production houses, catering and later drilling. (Ibid L15‑20)
2 The property identified and bought was at 3 Annie Borat Close, Brunswick. According to Mr Cresswell:
“We selected Annie Borat because I – we had our car and trailer at the back of Albert Street loading furniture and doing things and at one stage I had to load a car onto it to bring to Broken Hill and there was a place on the corner, 3 Eva Buhlert, and it had a For Sale sign on it which was wasn’t there the night before so I went over and read the sign and rang Barry Plant Real Estate Agents around the corner on Sydney Road and they told me they never had a place at 3 Eva Buhlert for sale so they went off to get the agent whose name was on the billboard called Lee Chant and after little discussions with her on the phone she realised whoever put the sign up put in on the wrong property. She told me which property it was. I then walked around the corner and had a sort of visual inspection around the outside and came to the house and told Gail [that is Mrs Cresswell] about it and the conversation went on from there.” (T506, L26 – T507, L11)
3 Corey began his working life as an apprentice in the mines in Broken Hill working for the mining company, Pasminco, and undertaking apprenticeships in fabrication, engineering and mechanical engineering. (Ibid L28-31)
4 On completing his apprenticeships in the year 2000, Corey moved to Melbourne where he studied for the degree of Bachelor of Commerce at Deakin University, majoring in Human Resources and Sports Management (T145, L1-12). He lived initially in Bendigo Street, Richmond, with his girlfriend whom he knew from Broken Hill (Marteine Edwards) and then at a property at Albert Street, Brunswick. (Ibid L25-31–T146, L2) Eventually, Corey’s sister, Tamarand, who had been living in Adelaide, moved to Melbourne and Corey, Tamarand and Marteine were co-tenants of the property in Albert Street, Brunswick. (T146, L12-20)
5 At some stage, Corey and Marteine split and Marteine moved out. The rental for the Albert Street property was $1,517 per month, which had been met by payment of $125 per person per week. According to Tamarand:
“We couldn’t afford to stay there, just the two of us. It was a three bedroom house.” (T427, L28‒30)
6 The result was that Corey and Tamarand were without accommodation and with limited earning power. Corey, at this stage, was a full-time student. According to Corey:
“My parents suggested rather than spend dead money or rent money that we purchase a property. They suggested that they would make a $100,000 deposit towards that property and that Tamarand and I would make repayments by way – and claim equity in the home in that manner.” (T146, L23‒28)
7 The proposed outlays for Tamarand and Corey were $125 per week, being the same outlays as they had been required to make as members of the three person household in Albert Street. (Ibid L31‒T147, L2)
8 Mr and Mrs Cresswell travelled to Melbourne from Broken Hill to assist Corey and Tamarand to move out of the Albert Street residence. They stayed in a motel and, following his vacation of the Albert Street property, Corey slept in his parents’ motel room on the first night. His belongings were removed to a storage facility. (T341, L21‒28, T342, L5‒6) Thereafter, Corey was left for the moment to sleep on couches at friends’ houses, pending identification of new accommodation on a long-term basis. (T341, L1‒3) According to Mrs Cresswell, she told Corey and Tamarand:
“We are going to buy a place, meaning Chuck [that is, Mr Cresswell] and I, for you to live. The conversation would have been that we would buy the premises and they were to pay the same rent as they previously paid and they were to pay outgoings. Their father and I would make up the difference in the mortgage payments between their rent [and the total mortgage payment]. We would pay the land rates, water rates except usage. They had to pay for their telephone, their own gas and their own electricity – and when the property was sold, we would give them a share of the profit.” (T343, L13‒22)
9 There appears to have been no elaboration of what would be entailed in any “share of profit”, how profit was to be calculated or how it was to be shared. (T482, L13) Meanwhile, Tamarand was living with a female friend but was not particularly happy with the arrangement. (T428, L4-10) Tamarand’s memory of events is that the arrangements for her parents to buy the subject property occurred after she had lived with the female friend for about six months. (T428, L12-17) The account given by Corey and his parents seemed to indicate that the subject property was acquired very shortly after Corey and Tamarand moved out of the property at Albert Street. Nothing turns on this point of timing, it would seem.
10 The property identified and bought was at 3 Annie Borat Close, Brunswick. According to Mr Cresswell:
“We selected Annie Borat because I – we had our car and trailer at the back of Albert Street loading furniture and doing things and at one stage I had to load a car onto it to bring to Broken Hill and there was a place on the corner, 3 Eva Buhlert, and it had a For Sale sign on it which was wasn’t there the night before so I went over and read the sign and rang Barry Plant Real Estate Agents around the corner on Sydney Road and they told me they never had a place at 3 Eva Buhlert for sale so they went off to get the agent whose name was on the billboard called Lee Chant and after little discussions with her on the phone she realised whoever put the sign up put in on the wrong property. She told me which property it was. I then walked around the corner and had a sort of visual inspection around the outside and came to the house and told Gail [that is Mrs Cresswell] about it and the conversation went on from there.” (T506, L26 – T507, L11)
11 Mr Cresswell said that he “slogged” at the job of finding a property for weeks. Corey, he said, was studying full-time and had minimal involvement and “didn’t show a lot of interest”. (Ibid L13-25) According to Mr Cresswell, his wife negotiated the price. (T508, L10-14) Corey’s evidence described him as playing a much more active role in identifying the property. He referred to two pages from a book which he kept at the time and which he described as a “scrap book” which included notes, messages, telephone numbers, doodlings and so forth. Two pages showed addresses of several properties with entries entered in his own handwriting and his mother’s and his father’s handwriting. (Court Book “CB” 1165-6, T149, L10-31) The sale price for the property which was purchased pursuant to an REIV contract note, was $294,750. The note was signed by Mr and Mrs Cresswell on 29 November 2001 and accepted by the vendor on 30 November 2001. (CB 688-9) Mr and Mrs Cresswell’s $100,000 payment towards the price was funded from sale proceeds which they held following the sale of their former residence in Cummins Lane, Broken Hill, when they moved outside of Broken Hill to a nearby property at Gum Paddock (about 10 kilometres outside Broken Hill), where they continue to reside. (T347, L3-12) Settlement took place on 21 January 2002. (CB 690) The Commonwealth Bank of Australia (“the Commonwealth Bank”) provided a loan in the sum of $208,750 to meet the balance of the purchase price, incidental expenses, stamp duty et cetera. (CB 695-6) The loan was secured by a mortgage over the property to the Commonwealth Bank. (CB 686) The cash contribution by Mr and Mrs Cresswell of approximately $100,000 was chosen “to get the mortgage to a level where we could service it along with the two rentals from Corey and Tamarand” according to Mr Cresswell. (T508, L22-24) The terms on which Corey and Tamarand were to occupy this property were discussed between them and Mrs Cresswell. (T508, L28) At the time of settlement the Annie Borat property was tenanted by three university students and it was necessary to give them 60 days’ notice to obtain vacant possession. (T509, L6-31)
12 When possession was recovered, Mr and Mrs Cresswell prepared the property for occupancy by their children. According to Mrs Cresswell, when Marteine Edwards had split from Corey she had taken most of the furniture from the Albert Street residence. As a result, Corey and Tamarand “had no fridge, no microwave, barely anything”. (T342, L19-21) This required the acquisition of a number of items of furniture and appliances. The property itself needed to be prepared. According to Mr Cresswell, there were some old dead eucalypt trees which need to be removed and an area at the front needed to be repaved:
“…to make an extra park for Tamarand to park her car, and then Corey used to park beside it in front of the garage, because they use the garage to store gear. I repaved the courtyard – or paved the courtyard, it used to be bark before. I moved the clothesline to the back fence to make the courtyard bigger. We moved the front fence further out to the boundary of the property so we could have the use of more of our land, just to make it a lot better, and I purchased pavers from C&M Bricks at Campbellfield, I carted rubbish and things – footings that I dug out back to the dump at Campbellfield and more, I can remember that - they charged me $75 to dump a load of rubbish which I just take down to a hole down the back of our property and do it for nothing. I couldn’t get over it, so - you know, so the second load, I towed back to Broken Hill. And Tamarand painted all the pickets, we paved the front entrance, another occasion I put timber blinds in the three top bedrooms, I hung a retractable clothesline in the garage for Corey to hang his clothes and Tamarand so they’d dry because they couldn’t afford a lot of power and didn’t have a dryer, we bought a fridge, we bought a microwave, when we moved down here we bought him a washing machine for Albert Street, Gail bought linen, pots, pans – I think there’s three breakfast stool inside the house which are ours, there’s a coffee table, there is an outdoor setting we bought from some property here for twelve, thirteen hundred dollars. Pots, plants. Yeah, I could – yeah, there’s probably things I’ll remember, I – go, yeah. And locks, hinges. I bought all the timber from Melville Timber. The pickets, a remade gate because I used to go down there in my Land Cruiser and my dog – I can remember that.” (T518, L14 – T519, L18)
13 Once they moved in, Tamarand and Corey made their payments to their parents’ account by transfer. (T151, L29 – T152, L4) This was done by the use of on-line banking facilities. (T152, L7-8) Corey completed his studies in 2002 and obtained some work in the human resources field working for the Olympic Park Trust. (T152, L23-30) He obtained employment with the Australian Broadcasting Corporation (“the ABC”) in December 2003. (T153, L1-2) This was permanent full-time work which gave him a salary of approximately $2,000 per month. (T153, L14) Meanwhile, Tamarand left some time “towards the end of 2003”. (Ibid L18) By the beginning of 2004, matters had materially changed for Corey. Tamarand had left Annie Borat Close but he was in receipt of a regular and full-time salary. He said he remembered having a telephone conversation with his mother whilst standing outside the gates of the ABC Elsternwick premises in Selwyn Street. He said:
“I expressed to my mother that I wanted to cover Tamarand’s portion of the contribution of the property. I remember at the time that I specifically said that I wanted it to the exclusion of Tamarand and my brother, Robbie. --- I did not wish to increase my payment dramatically and for Tamarand and Robbie to retain an interest in the property.”
14 He said, his mother replied:
“Yes, of course”
and asked if he [Corey] could afford the increased commitment. He said that this conversation:
“… correlates to a promotion that I received at the ABC at the time. I was promoted from administrative assistant to coordinator of studios, outside broadcasts and field operations. My first day in that job was the day after Labour Day in 2004. I recall that specifically because the predecessor in that position had moved to Hamilton and I helped him move to Hamilton over that Labour Day long weekend.” (T154, L17-24)
15 Asked by his counsel what he would have done had his mother not agreed to the arrangement which would exclude Tamarand and Robbie, he replied:
“Difficult to say precisely what I would have done, but I certainly wouldn’t have stayed and increased my payments markedly to take up that volume of my pay packet.” (T155, L15-18)
16 Mr and Mrs Cresswell give a different account of this period. According to Mrs Cresswell:
“I would have found it very hard to have a discussion with Corey with anything associated with Annie Borat because Corey told us what was going to happen and what was not going to happen. As from when Tamarand moved out, Corey gradually began to assert his authority over us and over the property. So to say there was a discussion I disagree.” (T363, L18-24)
17 More generally, as to Corey’s account of this conversation pertaining to an increase in his payment size to cover the amount previously paid by Tamarand, she said:
“That is incorrect. Corey’s words were to me that he could now pick up the extra rent off Tamarand. There was no discussion about who the property was being gifted, given to, nothing at all.” (T362, L7-10)
18 Around this time, according to Mrs Cresswell, she became aware for the first time that a person or persons outside the Cresswell family was residing in the property at Annie Borat Close. She had been told by her son, Robbie, that a gentleman called Bruce Morton had been living there. She said when she taxed Corey with this, his reply was, “That’s none of your business, old girl”. These were, she said, the exact words of his response. (T356, L24‒28). She just left the issue, rather than attempting to pursue it in any way. (T357, L5‒6) She said that attempts to obtain any information about boarders or sub‑tenants were unavailing — “Corey would never give any information back”. (Ibid L12‒13)
19 In the course of this proceeding, interrogatories were administered by Mr and Mrs Cresswell upon their son as to sub-tenants and boarders and he filed sworn answers. In the course of his viva voce evidence, he said he realised that he had omitted one tenant or boarder named David Berry. According to Corey, following a conference with counsel, he was led to peruse some old photographs and this revived his memory of Mr Berry’s stay at the property. According to Corey, “He moved in on January 9, 2005 and he exited on November 27, 2005”. He made payments by way of rent or board, but Corey could not remember the amounts involved. (T156, L23‒T157, L24)
20 In June 2005, Mr and Mrs Cresswell came to stay at the property. This was to attend “a premiership reunion function at [Corey’s] football club” where he was president at the time. He said they also paid a return visit at Christmas 2005. (T158, L22‒29)
21 In 2007, according to Corey, he had a conversation with his mother in which he proposed that his payment should rise to meet the full amount of the mortgage repayment and his mother “told me that that was $662 [per week] and thus I started paying $662”. (T159, L1‒9) He said it was also agreed between them that he would pay outgoings such as council rates and water rates, and he began paying them. His mother had asked him whether or not he could afford to make those payments, but his parents would continue meeting the home insurance costs. He said that performance of these additional payment obligations was reflected in his banking records. (Ibid L9‒30) He referred to email communications between him and his parents at Court Book (“CB”) 503‒513 which pertained to the amounts of outgoings which, he said, were payable by him as part of this arrangement. (T159, L31‒T160, L23) In 2008, Corey said he increased his weekly payments to $750 following discussions with his mother. He said he described this to her as “forced saving and that I was happy to make the additional repayments”. (T160, L28‒T161, L4)
22 Corey’s last working day for the ABC was Friday, 13 March 2009. (T162, L19‒20) The circumstances of his ceasing employment were not disclosed by the evidence. Corey says he recalls a telephone conversation with his father in Gordon Street, outside the ABC complex, whilst he was en route to a farewell lunch with his colleagues, in which Mr Cresswell said “Someone needs to take care of your mother, I’m done”. (Ibid L22‒27) He said he did not know exactly what was happening “but there was clearly a breakdown”. (T163, L1) According to Corey, before he received this call, he was intending “simply to take a short break”. (Ibid L23‒24) There were apparently further discussions between Corey and his father and, in late April, approximately a month or so after he had finished work at the ABC, he decided to return to Broken Hill and the family home. Living in the old family home known as Gum Paddock and working in the drilling business sometimes entailed travel to outback New South Wales and South Australia. His brother, Robbie, had been working in the drilling business. (Ibid L25‒T164, L7) Rendering assistance to his mother, Corey said:
“I effectively did anything and everything that needed to be done. I cooked for my mother, I cleaned, I ran baths, I drove her – I was with her as much as possible. In addition to that, I did quite a bit of work as I say on the drill rig both in Broken Hill, at various locations in New South Wales, and South Australia, and I did a great amount of bookwork for my parents – accounting‑like, I also acted as a liaison between them and their solicitors for a legal matter at the time.” (T164, L12‒21)
23 According to Mrs Cresswell, she required root canal surgery in association with neuralgia and suffered depression secondary to this disorder. During this time, according to Corey:
“I wanted to go ahead with the transfer of title, to which she agreed and she showed some enthusiasm for, and as a result of that conversation I made contact with the Commonwealth Bank manager in regards to taking over the mortgage and I garnered his advice about how to do that, and I also contacted real estate agents in Melbourne to get some valuations performed.” (T165, L16‒24)
24 The transaction under discussion between Corey and his mother was, according to Corey:
“My mother suggested that I pay her back the – pay my parents back the initial deposit and all the out-of-pocket expenses related to the property only.” (T166, L5‒8)
25 The out-of-pocket expenses in question were council rates and costs associated with the purchase. (Ibid L9‒12) Corey said:
“I would make all payments on the mortgage and … I would make all payments for outgoings, and I took necessary [action] to do that.” (Ibid L22‒25)
26 As a result, he made payments direct to the mortgagee, the Commonwealth Bank. (Ibid L26‒29)
27 Mrs Cresswell denied that these discussions took place at all. (T365, L9‒11) She said that Corey’s action in making payments directly to the mortgagee was unilateral on his part and was not welcome or acceptable to his parents. They returned the rental on the Brunswick property in their tax return. [It would seem that this was an example of the controversial investment practice of “negative gearing”.] She said that it was an embarrassment to the proper administration of her and her husband’s tax affairs to have the rent on the property paid other than through the parents’ rent account. The ultimate result was that the income ceased to be returned as part of their assessable income. (T366, L12‒T367, L3) When Corey unilaterally began making payments direct to the mortgagee, she said that Mr Cresswell remonstrated with him at length in a long, angry telephone conversation, but to no avail. She said that Corey was facilitated in making these direct payments by the accounting details which he obtained whilst at home in 2009. (T367) According to Mr Cresswell, Corey returned to Broken Hill not specifically to render assistance to his mother, but simply because he was unemployed. (T540, L1‒11)
28 Corey said:
“During late 2009 my relationship with my mother broke down almost entirely. I continued to have a relationship with my father, beyond that in 2010. In 2009, there was an incident at our property in Broken Hill. I’m not sure how much detail to include but my mother was physically assailing my father and I called an ambulance not knowing – it was a very difficult situation, called an ambulance for attendance and effectively from that time on my mother has barely spoken to me. … The ambulance was there specifically due to the behaviour of my mother.” (T170, L21‒T171, L3)
Mrs Cresswell gave a much fuller account of this event, although the further details were not put to Corey in cross-examination. Mrs Cresswell gave a very detailed account in a single long answer commencing at T417, L25 and concluding at T419, L27. In broad terms, her account was a denial of Corey’s version of events which had him intervening reluctantly in a dangerous and distressing family dispute. Rather, Mrs Cresswell has him provoking the conflict at the outset by speaking to her contemptuously. She described Corey as having repeatedly restrained her and, on one occasion laying a rugby tackle on her. She said following consultation with a nurse, the nurse told Mrs Cresswell “your son is to leave your house immediately”. (T419, L16-17). Concluding her account, Mrs Cresswell said:
“In actual fact, when Corey left the property, I made a phone call to Barry Plant [an estate agency operating in, amongst other places, Brunswick, Victoria] and I asked them to do a drive-by valuation. I gave the phone number – I gave Corey’s phone number to the real estate agent to contact him because I wanted Corey to know that my intentions were to put the house on the market.” (T419, L22-27)
29 In broad terms, her account blamed Corey’s controlling ways for the incident. Mrs Cresswell said she did not discover, until a considerable period of time after Corey left Gum Paddock, that he had been making payments directly to the mortgagee of the Brunswick property.
“That may have been – because I really wasn’t back on track mentally for quite a few months so it would have been a matter of a few months afterwards but Corey, whilst he was there, which started to sour these things, to start to cause derogative comments from Corey to me was at the time our property, Gum Paddock was up for sale.”(T421, L1-7)
30 Mrs Cresswell conceded that she stopped making payments to the Commonwealth Bank as mortgagee of the Brunswick property “in about September 2009” because Corey was making those payments. (T422, L4-8) Mrs Cresswell said that Corey left Gum Paddock “at the end of September” [2009]. (T422, L27-28) Corey’s account would appear to put his departure somewhat later than this.
31 After the incident with the ambulance, it appears that Corey removed from the Gum Paddock homestead. His mother had him living in a next door cottage. (T421, L13-14) Corey refers to himself as “sleeping in a swag in a shed 100 metres away from home”. (T171, L14-15) At any rate, some time before Christmas 2009, Corey returned to the Brunswick house. His partner, Ms Bosua, had been living there throughout, as had a Mr David Harris.
32 In early 2010, Corey said that he was in continued contact with his father. In a conversation presumably by telephone, he said
“…my father then suggested to me that we transfer the title of the house into his name and my name only, and I remember where I was standing at the time – outside of my home underneath a tree at Annie Borat Close, I recall being dumbfounded by the suggestion. I asked him why – I don’t recall much more of the conversation thereafter. (T172, L16-22)
33 Corey said that he was dumbfounded because such a transfer would not implement the arrangement that he said had been reached and he “didn’t understand what we were achieving”. (Ibid, L28-29)
34 Mr Cresswell absolutely denied this conversation. He said it did not happen and he had no authority to make such a decision without his wife. (T518, L6-11)
35 Thereafter, there was little telephone or personal contact between Corey and his parents. On 12 June 2012, Corey wrote to his parents in very formal terms addressed to “Charles and Gail”, noting that he would adjust his monthly payments on the loan account to $1,202 per month – down from the previous figure of $1,548 per month. This is presumably reflective of a cut in market interest rates. He asked his parents to reply in writing “promptly” if they had any concerns. The letter then continued:
“I wish to remove your claim to ownership of the property.
I am prepared to allocate $320,000 to facilitate the transfer of title. This amount clears the principle (sic) owed to Commonwealth Bank, the initial deposit and your outgoings for House and Contents Insurance. It also provides for 5% earnings over 10 years on your initial deposit of approximately $100,000. I request and encourage your reply by 1 July 2012. Please reply in writing. I do not intend to continue servicing this loan account beyond 1 July without a positive reply that displays your intention to transfer the title. Clearly without a display of positive intent, I shall also cease to take responsibility for payment of State Land Tax, the local Land Rates and Utility Rates.
I look forward to your response.
Regards” (CB 547)
36 A few weeks later on 3 July 2012, Corey wrote a follow-up letter, noting the lack of a response. He said that he would suspend the mortgage payments “for which I have been exclusively responsible, until you provide a commitment in writing”. He said he was also suspending payments of “SRO and Moreland Council instalments”. He complained that he had been deprived of access to the online banking account “without notice”. He said that he would be “unable to monitor the account and will be unaware of any further amendments to the conditions of the Home Loan made without my input”. He called for a letter indicating his parents’ intention to transfer title “so that I may arrange necessary paperwork. I request that you arrange for this letter to be received prior to 21 July 2012, the next mortgage payment due date”.
37 In fact, the bank statements show that Corey did terminate making payments. It seems that his parents negotiated a modification of the loan to an interest-only arrangement, and they have been making those interest payments ever since.
38 Corey then received a letter dated 13 August 2012 headed “Notice of Sale Intent”. The letter is over the typed signature “CJ and GA Cresswell”, though it appeared from Corey’s response, to which I will refer presently, that there was no handwritten signature. The Notice of Sale Intent said that all occupants residing at the property “are hereby given 30 days’ notice from the date of this letter to vacate the premises”. It continued:
“…all persons including personal possessions are to be removed from the property whereupon the premises … shall be placed on the Market for sale and will be sold. …All or any proceeds of this Sale shall be dispersed to any interested parties in an amicable manner.”
39 The letter concluded with some obscurity, “A draft of this letter will be issued to a third party”. (CB 573)
40 Corey responded in a letter dated 21 August 2012, once again calling for the performance of the agreement that he alleged had been made with his parents. He said that following legal advice, any attempt to “sell my home shall be met swiftly with a caveat preventing its listing”. He also said that:
“…any attempt by a real estate agent to approach or list the property shall result in the full disclosure of your mental health history, the effects this may be having on your judgment and the difficulties that may arise dealing with you.”
41 He concluded “I am disgusted by your actions”. (CB 549)
42 This was followed by the despatch of a further document headed “Notice of Sale Intent” dated 14 September 2012. This document appeared to have handwritten signatures for both Mr and Mrs Cresswell. This letter stated inter alia:
“We can assure you the property shall be placed on the market and sold. Be assured has previously stated all proceeds after any commitments will be dispersed between any interested parties in an amicable manner, allowing you to approach the buying market. You do not and will not ever understand the opportunity of which you were given and a living standard for the past 10 years of which you would not have been able to otherwise achieve on a personal level. Regretfully we cannot continue to supply free living conditions to multiple persons as all commitments are ultimately our financial responsibility.” (CB550)
43 The letter continued “You were such a beautiful little boy Corey. What happened to you? … Please vacate the premises so that we may end this.”
44 Mr and Mrs Cresswell filed an application for possession of the property in the residential tenancies list of the Victorian Civil & Administrative Tribunal (VCAT). Mr Cresswell also served a “Notice to Vacate” under the Residential Tenancies Act 1997 dated 22 December 2012, referring to ss322 and 253(1) of the statute, stating: “Property to be marketed for sale with vacant possession of current lodge’s (sic) have refused to pay rent and outgoings forcing owners into financial difficulties.” (CB 587-596)
45 There was a further application for possession filed with VCAT in the name of Mr and Mrs Cresswell, referring to ss322(1) and 253 of the Residential Tenancies Act and seeking “Possession. Assignment or sub-letting without consent. You have assigned or sub-let part or all of the premises without my permission or purported to.” (CB 588-594)
46 There was a further Notice to Vacate of the same address. (CB597) The hearing took place at the Tribunal before Member Susanne Liden with the order stating inter alia:
“The application is struck out because the Tribunal finds that agreement between Charles and Gail Cresswell on the one hand, and Corey Cresswell on the other hand, is not a tenancy agreement as defined in the [Residential Tenancies] Act. … The agreement between the parties, by their own admissions, provided that Corey Cresswell and his sister would acquire an interest in the property as a result of their contributions to the purchase price through payment of the loan repayments.” (CB 599)
47 A letter from Corey’s older brother, Robbie, addressed “To Whom it May Concern”, was lodged with the Tribunal in support of the application and dated 30 January 2013. (CB 697)
48 Corey attended a further scheduled hearing at VCAT on 18 March 2013, but it transpired that the application had been withdrawn. (T180, L23-25)
49 In 2013, Corey received a copy of the land rates for the Brunswick property, which he believed had been sent to Broken Hill, copied by his mother, and forwarded to him in Brunswick in a plain envelope. He said he recognised her writing. (T181, L19-28) Corey said that he ceased making mortgage payments in June 2012 in accordance with the threat or promise which he had made in correspondence with his parents, but resumed making payments in November 2012 until August 2013. (CB 1108-1109, T182, L6-24) August 2013 was the final payment which Corey made towards the mortgage.
50 Corey had lodged a caveat claiming interest in the Brunswick property. He received a notice from the Registrar of Titles dated 8 August 2014 referring to the caveat and stating that an application under s89A of the Transfer of Land Act 1958 had been made [it would seem on behalf of Mr and Mrs Cresswell]. The notice said that Corey’s caveat would lapse on 11 September 2014 unless the application to remove the caveat was abandoned or Corey gave the Registrar “written notice which satisfies the requirements prescribed by s89A(3) of the Transfer of Land Act 1958”. Those requirements were that proceedings were on foot in a court of competent jurisdiction to substantiate the interest claimed by the caveator. (CB 601)
51 In response, Corey commenced this proceeding in the Supreme Court with a generally endorsed Writ. The proceeding has been transferred to this Court and has come on before me for hearing and determination.
52 I was informed that the matter was fixed for trial before his Honour Judge Cosgrave in April of this year, but was adjourned because of the terms of the plaintiff’s endorsement of claim which has since been re-pleaded.
Plaintiff’s claim
53 The plaintiff’s claim is now embodied in a Second Amended Statement of Claim dated 12 October 2016, amended in accordance with orders of Judicial Registrar Burchell made on 6 October 2016.
54 According to this claim, Mr and Mrs Cresswell entered into a contract to purchase the Brunswick property and became joint registered proprietors thereof in January 2002. It was said that this purchase was made “in accordance with an agreement” entered into by Mr and Mrs Cresswell, Corey and Tamarand (the 2002 agreement), whereby Mr and Mrs Cresswell would pay $100,000 of the purchase price of the property and borrow the balance by mortgage with Corey and Tamarand each contributing to repayment of the mortgage and maintaining the property.
55 Mr and Mrs Cresswell were to hold the property as an investment for the benefit of Corey and Tamarand. It was said that acting in reliance on this 2002 agreement, Corey and Tamarand began making payments of $250 each per fortnight toward the repayment of the mortgage, which payments, when made, were then applied by Mr and Mrs Cresswell to repaying the mortgage. These payments were made “on the basis that the property was held [Mr and Mrs Cresswell] as an investment for the benefit of” Corey and Tamarand.
56 An alternative allegation was that the property was purchased in accordance with an agreement made between Corey, Mr and Mrs Cresswell and Tamarand, whereby Mr and Mrs Cresswell would pay $100,000 towards the purchase price and borrow the balance of the purchase price “by a mortgage facility”, Corey and Tamarand would each contribute to repayment of the mortgage facility and maintain the property. Mr and Mrs Cresswell were to hold the property as an investment for the benefit of Corey, Tamarand and themselves, and in the event of the sale, the proceeds would be applied in payment of each party’s contributions and the balance would be divided equally between Corey, Tamarand and Mr and Mrs Cresswell. The Plaintiff relied upon statements made in the transcript of the hearing in VCAT’s Residential Tenancies List on 31 January 2013. This arrangement was described as “the alternative 2002 agreement”.
57 Next, it was said that acting in reliance on the 2002 agreement, or the alternative 2002 agreement, Corey and Tamarand made payments of $250 each per fortnight toward repayment of the mortgage. These payments were said to have been made to an account in the name of Mr and Mrs Cresswell, who then applied the payments to repayment of the mortgage. Those payments, it was said, were made on the basis that the property was held by Mr and Mrs Cresswell as an investment for the benefit of Corey and Tamarand pursuant to the 2002 agreement or, alternatively, Corey, Tamarand and Mr and Mrs Cresswell, pursuant to the alternative 2002 agreement.
58 In 2003, it was said that Tamarand ceased living at the property. In early 2004, with her consent, it was agreed to vary the 2002 agreement so that she would no longer make payments toward the repayment of the mortgage, and Corey would pay $500 a fortnight toward the repayment of the mortgage. Mr and Mrs Cresswell would hold the property as an investment for the sole benefit of Corey. Acting in reliance on this 2004 agreement, it was said that Corey made payments of $500 a fortnight toward repayment of the mortgage between March 2004 and March 2007. Those payments were made “on the basis that the property was held by [Mr and Mrs Cresswell] as an investment for the benefit of” Corey. The particulars of this reliance would seem to be that Corey “would not have stayed at the property and would not have made the payments he did if [Mr and Mrs Cresswell] had not agreed to the proposal described”.
59 Alternatively to the above, it was said that when Tamarand ceased living at the property in 2003, there was an agreement made between Corey and Mr and Mrs Cresswell in early 2004 with the consent of Tamarand varying the 2002 agreement to the effect that Tamarand would no longer make any payments towards repayment of the mortgage, Corey would pay $500 a fortnight to the repayment of the mortgage facility, Mr and Mrs Cresswell would hold the property as an investment for the benefit of Corey and themselves and, in the event of sale, the proceeds would be applied in payment of each party’s contribution and the balance divided equally. This was referred to as “the alternative 2004 agreement”.
60 Next, it was said that acting in reliance on the 2004 agreement or the alternative 2004 agreement, Corey made payments of $500 per fortnight toward repayment of the mortgage between March 2004 and March 2007. Those payments, it was said, were made by him on the basis that the property was held by Mr and Mrs Cresswell as an investment for the benefit of himself pursuant to the 2004 agreement or, alternatively, for himself and Mr and Mrs Cresswell pursuant to the alternative 2004 agreement. By way of particulars, it was said that Corey would not have stayed at the property and would not have made the payments he did if Mr and Mrs Cresswell had not agreed to the proposal which became the 2004 agreement.
61 Next, it was said that there was a 2007 agreement whereby Corey agreed that he would “make full payment of amounts due under the mortgage”. It was said that acting in reliance on that agreement, Corey made payments of $662 per fortnight for repayment of the mortgage between March 2007 and June 2008, and made payments of $750 per fortnight toward the repayment of the mortgage between June 2008 and September 2008. Again, it was said that those payments were made by Corey “on the basis that the property was held … as an investment for [his] benefit”.
62 It was said in 2009 that Corey ceased his employment and, at the request of Mr Cresswell, returned to Broken Hill to care for Mrs Cresswell and to assist in the family business. In or about September of 2009, Corey and Mr and Mrs Cresswell agreed that Corey would make the payments of the mortgage directly to the mortgagee. Mr and Mrs Cresswell would transfer ownership of the property to Corey on payment by him of the balance of the mortgage, the $100,000 deposit that had been made, and other outgoings that had been paid by the defendant in respect of the property.
63 It was said that in performance of, and in reliance upon, that agreement, Corey made payments of $500 a fortnight directly to the mortgagee in September 2009; made payments of $1,000 per month directly to the mortgagee from June 2010; and made payments in excess of $1,500 per month directly to the mortgagee from December 2010. Those payments, it was said, were made on the basis that the property would be transferred to Corey on payment of the balance of the mortgage then owing with the $100,000 deposit and other outgoings.
64 Acting in reliance on that agreement, he made mortgage payments, paid expenses, and made and paid for repairs, maintenance and improvements to the property. These payments were said to have been made in the expectation that the property was held by Mr and Mrs Cresswell for his benefit and he thereby acted to his detriment.
65 It was said, further, that it “was the common intention of [Corey] and [Mr and Mrs Cresswell] that if [Corey] made the payments referred to … and made the other contributions [Corey] would be beneficially entitled to the property”.
66 Further, it was said, it was the common intention of Corey and Mr and Mrs Cresswell that if Corey made the payments referred to, “the property would be transferred to him”. In fact, Mr and Mrs Cresswell have denied that they hold the property for Corey’s benefit “and contend that [Corey] is only entitled to a share of any profit made upon the sale of the property”.
67 If that were true, and the plaintiff made the payments referred to, he would have an interest in the property equal to half of the profits on its sale or in proportion to his contributions to payment of the mortgage. The claim noted that Mr and Mrs Cresswell have claimed that Corey’s interest in the property is as a tenant only and have sought to exclude him from it.
68 Corey sought specific performance of the 2009 agreement or further or alternatively a finding that it was unconscionable for Mr and Mrs Cresswell to deny Corey an interest in the property, and they were estopped from doing so.
69 Further and alternatively, a finding was sought that it was unconscionable for Mr and Mrs Cresswell to deny that Corey was entitled to a share in the profits and they were estopped from doing so.
70 Mr and Mrs Cresswell were said to “hold their interest in the property on a constructive or resulting trust for the plaintiff”.
71 Alternatively, Corey claimed equitable compensation for the amount of the payments scheduled to the plaintiff’s claim. He sought, by way of relief, a declaration that Mr and Mrs Cresswell hold their interest in the property on trust for him; an order for specific performance of the 2009 agreement; an order that Mr and Mrs Cresswell do all things necessary or require to transfer the property to him upon payment of the amounts referred to, viz the balance of the mortgage, the $100,000 deposit and other outgoings paid by Mr and Mrs Cresswell. A further alternative claim for relief was for a declaration that Corey is entitled to an interest in the property equal to:
(a) half share in the profits from its sale; or
(b) in proportion to his contributions to the payment of the mortgage.
72 A further alternative declaration sought was that Mr and Mrs Cresswell are estopped from denying that Corey has an interest in the property and is entitled to a transfer of the property upon payment of the amounts referred to above or, alternatively, entitled to a share in the profits. There was an application for orders under s225 of the Property Law Act 1958 for the sale of the property and division of the proceeds between Corey and his parents. Alternatively, an order that Mr and Mrs Cresswell pay equitable compensation or damages “in the amount of payments made by the plaintiff in discharge of the mortgage”, costs or further or other relief.
73 At the conclusion of the evidence, Mr Northrop stated that the plaintiff would not rely on the originally alleged versions of the 2002 and 2004 agreements but rather upon the two alleged alternative versions. (T563, L17-20)
Defence and Counterclaim
74 The defendants’ Defence and Counterclaim is embodied in the Second Amended Defence and Counterclaim filed 19 October 2016. They denied the agreements alleged by Corey. According to Mr and Mrs Cresswell, they purchased the Brunswick property taking title in their own names “to provide a secure place for [Corey] and Tamarand to reside in”. They were to provide their own funds to meet the purchase price and borrow the balance required to complete the sale. Both Corey and Tamarand lived in the Brunswick property. They were to pay $125 per week to Mr and Mrs Cresswell as rental and the outgoings from the property for electricity, gas and telephone charges. Were the Brunswick property sold, and once the sale proceeds were applied to repay Mr and Mrs Cresswell’s personal outlays towards the purchase price and all other contributions they had made towards the property, Mr and Mrs Cresswell “would at their sole discretion provide a share of any nett profit they made on the property to [Corey] and to Tamarand”. The property was to be held as an investment for Mr and Mrs Cresswell.
75 These terms, it was said, were agreed in conversations at Albert Street, Brunswick “in the share house [Corey] and Tamarand were renting before they moved into the property”. The conversation took place before the property was identified for purchase. Insofar as the agreement was to be implied, Mr and Mrs Cresswell said it was to be implied from their residence in Broken Hill, New South Wales with Corey being 24 years of age living in Melbourne and studying at Deakin University, and Tamarand being 21 years of age and working in Melbourne.
76 Corey and Tamarand had been paying $125 each per week to live in a shared rental house in Albert Street, Brunswick with another person. Corey and Tamarand were unable to meet the rental on the property when their fellow tenant moved out. Tamarand had moved in with a friend but Corey had no secure tenure on the sleeping at friends’ houses or flats on mattresses on the floor in lounge rooms.
77 According to Mrs Cresswell, they purchased the property using $100,000 of their own money. They took out a loan from the Commonwealth Bank for $208,750 security against the property. Corey and Tamarand did commence paying the rent of $125 each per week into Mr and Mrs Cresswell’s bank account at the Broken Hill Community Credit Union, and paid the relevant outgoings.
78 Mr and Mrs Cresswell admitted receiving certain payments from Corey and Tamarand though they did not admit the precise amounts alleged. They denied that these payments were made “in repayment of the mortgage”, but say instead that the payments were that of rental made in accordance with the Rental Agreement between them on the one hand, and Corey and Tamarand on the other. Alternatively, the sums represented “payment for living at the property”.
79 Mr and Mrs Cresswell admitted that Tamarand ceased living at the property and that Corey offered to pay $500 per fortnight to them, but they otherwise denied the arrangements alleged by Corey to have been made when Tamarand moved out.
80 According to Mr and Mrs Cresswell, in or around November 2003 they agreed with Corey that if he:
“…rented out the remaining two bedrooms in the property, then in addition to paying his own rental of $125 per week he was to pay to the defendants the rental of such person or persons.”
81 This was described as the “Extra Rental Agreement”. The agreement was said to be partly oral and partly implied. The oral portion of the agreement was made in or around November 2003 “when Tamarand ceased living at the property”. They said they told Corey they were not happy with his letting out bedrooms in the property “that they required [him] to inform them of who the proposed tenants were to be so they could approve them as tenants and make arrangements for the rental”. The implied portion of the agreement was said to flow from:
“…the fact that [Corey] did rent out the property to other person or persons and from time to time did pay such rental to the defendants and so as to give business efficacy to the agreement.”
82 According to Mr and Mrs Cresswell, the Extra Rental Agreement included implied terms necessary to give business efficacy to the agreement to the effect that any rental Corey received was to be collected by him on behalf of Mr and Mrs Cresswell and paid to them. Any person permitted to reside in the property was to pay rental. The rental was to be no less than $125 per week, and Corey was responsible for collecting the rental on behalf of Mr and Mrs Cresswell and paying those amounts to them.
83 As to the agreement in 2007 alleged by Corey that he would pay amounts equal to the mortgage repayment, they agreed that he stated he would do this and “such payments represented [Corey’s] obligations under the Rental Agreement and the Extra Rental Agreement”. Any payments received by them under these arrangements, they said “were that of rental made in part compliance with the Rental Agreement … and the Extra Rental Agreement … or alternatively if not rental, payment for living at the property.” They denied that, as a result of the 2007 arrangement, or following it, the property was held beneficially for Corey.
84 As to the 2009 agreement alleged by Corey, they denied that Corey left his employment with the ABC to return to Broken Hill at their request. They denied the alleged terms of the 2009 agreement, generally. Whilst they admitted that Corey made payments directly to the Commonwealth Bank as mortgagee of the property, they otherwise denied the allegation that this was in performance of the alleged 2009 agreement. This was because payment directly to the mortgagee was a unilateral action on Corey’s part without their consent and the payments were to be characterised as rent or payment for living at the property. They said there were telephone conversations between them and Corey:
“…where he was told to stop making payment directly to the mortgage, as the property was an investment property of the defendants and his rental needed to be declared as income for the defendants’ tax purposes.”
85 They denied that any payments made after the alleged 2009 agreement were made on the basis that the property would be transferred to Corey.
86 According to Mr and Mrs Cresswell, Corey was in breach of the Rental Agreement in having failed from time-to-time to pay his $125 rent per week and outgoings. He was in breach of the Extra Rental Agreement in having failed to pay the entire rent he received for rental of the two rooms and he “failed to collect from any person or persons [whom he] permitted to reside in the property [at] a weekly rental of $125”. These breaches, they said, had caused them loss and damage and the rentals received from sub-tenants was held on trust for Mr and Mrs Cresswell by Corey and he was liable to pay that amount to them as and when he received it. In fact, he failed to pay over or account for those amounts. His receipt of those monies entailed unjust enrichment to their detriment. Accordingly, he was liable to account for all benefits and profits derived by him arising out of the trust property, and he held any property or assets purchased with the trust money “on trust for [Mr and Mrs Cresswell]”. If he no longer held the trust property, being the monies collected, then Mr and Mrs Cresswell claimed an entitlement to equitable compensation.
87 Mr and Mrs Cresswell denied that in making such payments and outlays as he did under the arrangements which he alleged, Corey had suffered any detriment, because the amounts outlaid were less than the combined value of Corey’s occupation of the property and the rent received by him from others who occupied the property. They denied that there was a common intention as between them and Corey that if he made the payments under the alleged 2009 agreement, the property would be transferred to him.
88 As to any entitlement Corey might have to profits on the sale of the property, they said such an entitlement was subject to their absolute discretion and arose only on sale, with the result that Corey had no interest in the property at all. Alternatively, any share to which he might be entitled would be:
“…no more than the proportion of [his] financial contribution to the property, excluding those payments made by [him] or due under either of the Rental Agreement and the Extra Rental Agreement, as compared to that of [Mr and Mrs Cresswell].”
89 They said Corey had not fully complied with the Rental Agreement and the Extra Rental Agreement and had, effectively, occupied the property without making adequate payment to [them] such that he is not entitled to a share of the profits.
90 Alternatively, if he were entitled to a share of profits on the sale of the property and either the Rental Agreement or the Extra Rental Agreement were not enforceable, any share he:
“…might be entitled to is no more than the proportion of [his] financial contribution to the property, less the value of the benefit received by [him] while in occupation of the property and in receipt of rental received from third parties for their occupation as compared to that of [Mr and Mrs Cresswell]”.
91 They said that if his contributions were of a lesser value than the benefit he has received, then he would not be entitled to a share of the profit.
92 Mr and Mrs Cresswell said that Corey’s interest in the property “is that of tenant” and they were entitled to bring proceedings at VCAT to have him evicted. They denied that it was unconscionable for them to deny Corey’s claim to an interest in the property or to deny that he is entitled to a share in profit. They denied that they held the property on constructive trust for him. If he had any interest in the property, it was limited in the manner already explained.
93 Mr and Mrs Cresswell complained that, despite the service of a series of Notices to Vacate, Corey remained in occupation of the property. They sought to set off any amounts of money which might, despite their denials, be found to be owing by them to Corey against the loss and damage which they suffered by reason of his failing to account for trust property as previously alleged. If it were impossible to offset those amounts, then those amounts were counterclaimed against Corey.
Conclusions
Counterclaim
94 Here, the essence of the Counterclaim is that Corey is required to account to his parents, Mr and Mrs Cresswell, for the rental which he collected from sub-tenants or boarders. One may doubt that these individuals, even if paying amounts described as rent, were properly to be characterised as tenants or sub-tenants. What marks a tenant on the one hand off from a licensee or lodger on the other, is the entitlement of the former to exclusive possession of the relevant premises. (Radaich v Smith (1959) 101 CLR 209)
95 At any rate, however these individuals’ status is characterised, the pleaded basis for Mr and Mrs Cresswell’s claim to ownership of the amounts paid by the individuals disclosed by Corey in his answers to interrogatories and others, such as Mr Morton and Mr Berry, who were mentioned in viva voce evidence, derives from what is pleaded as the “Extra Rental Agreement”.
96 There is simply no evidence of such an agreement ever having been made. I have already quoted Mrs Cresswell’s evidence as to what occurred when she first raised the issue with Corey. According to her, his response was “none of your business, old girl”.
97 Mrs Cresswell sought to explain the arrangement in 2007 where Corey’s payments to his parents were adjusted upwards so as to equate with the payments to the mortgagee bank as being a means whereby she and her husband could collect the rent which she understood her son was receiving from the boarders or the lodgers. (T413, L13-19)
98 Mr Northrop in cross-examination asked Mrs Cresswell why she did not simply ask her son to pass on the rent received from the sub-tenants. She replied, “I wouldn’t have asked him to do that because I knew it would’ve caused an argument”. (T414, L18-19) She agreed that she, herself, had not made such a request, but she said “Chuck has”. (Ibid, L21)
99 This matter was not covered initially in Mr Cresswell’s evidence-in-chief. Following the completion of the evidence-in-chief and in the course of Mr Northrop’s cross-examination of Mr Cresswell, Mr Mihaly was permitted to raise this matter as a piece of supplementary examination-in-chief.
100 According to Mr Cresswell, he raised this issue with Corey “early in the piece” in a conversation that they had at the Brunswick property. According to Mr Cresswell’s evidence, he said “what rent are they [the sub-tenants] going to pay? … the rent that they do pay I want forwarded on to us”. Corey’s response was that that was none of Mr Cresswell’s business. (T542, L29 – T543, L1)
101 Mr Cresswell described further occasions in which he raised this issue with Corey while they were both at Gum Paddock, in telephone conversations and so forth, but the response, as I understood his evidence, on all occasions was “he told me it had nothing to do with me”. (T543, L28-29)
102 In the face of this evidence, there is no basis whatsoever to make a finding that the alleged Extra Rental Agreement was ever reached. The proposals, inquiries and demands Mr and Mrs Cresswell said they made were simply rebuffed. As a result, based on the pleaded Counterclaim, all assertions that Mr and Mrs Cresswell were entitled to payments from tenants, lodgers or sub-tenants must fail.
103 In his closing submission, Mr Mihaly said:
“The primary position of the defendants is that the rent received by Corey from third parties ought to be treated as a component of the amount paid by Corey to Gail and Chuck. It is on that basis that the defendants have reduced the total amount paid by Corey in relation to the property. If that submission is not accepted, and Corey is taken to have paid a greater amount to Gail and Chuck, it would then follow that he has not forwarded to them every (or any) rental payment received by him.
As it was a term of the licence that he do so and as he granted the licences to third parties only on Gail’s and Chuck’s authority, he received that money for Gail and Chuck. Corey must account to Gail and Chuck for money that he received solely by exercising rights that only they could exercise.”
104 Leaving to one side the characterisation of Corey’s position relative to the Brunswick property to which I will turn presently, insofar as these submissions depend upon a finding that there was some agreement by Corey to forward sub-rents or other payments from lodgers or boarders, the findings that I have already made and the clear evidentiary position, negate those claims completely.
105 In oral submissions, Mr Mihaly said that Corey was a licensee, only, of the premises in Brunswick, not having an entitlement to exclusive possession and as such he had no entitlement to sub-let.
106 If one accepts these premises for the sake of the argument only, the conclusion does not follow. There was nothing to suggest that in making the arrangements with the lodgers, Corey was acting as agent or trustee for his parents. In the absence of a finding of either of these statuses, it is difficult to see how the sub-rental monies, if we may describe them as such for ease of reference, could belong in equity to Mr and Mrs Cresswell.
107 The Counterclaim must be dismissed.
Status of Corey
108 Mr and Mrs Cresswell’s primary position is that Corey is a mere licensee. He does not even have the status of a tenant. Their taking of this position is embarrassed by the applications which they made to VCAT under the Residential Tenancies Act and the notices which they served in pursuance of that statute. The premise underlying that action is that Corey was a tenant within the meaning of that statute.
109 Mr Cresswell explained their action in this way: “I was just trying to do – complete an exercise the cheapest way possible.” (T525, L7-8) That is, he and his wife knew that Corey was not a tenant but decided to make an application to a forum that had no jurisdiction based on a status that neither they nor Corey possessed, viz landlord and tenant, because it was “cheap”.
110 I need not consider the question of whether the determination by VCAT constitutes a res judicata or issue estoppel or the further question of whether it would constitute an abuse of process to re-open the issue of possession in the face of VCAT’s determination.
111 Independently of those doctrines, I respectfully agree with Member Liden’s conclusion that the arrangements between Corey and Mr and Mrs Cresswell provided that he “would acquire an interest in the property” as a result of his contributions to the purchase price.
112 In his letter addressed “To whom it may concern” and dated 30 January 2013, lodged in support of Mr and Mrs Cresswell’s VCAT application, their son, Robbie, referred to Mr and Mrs Cresswell’s arrangements with Corey and Tamarand as “allowing them to not lose out on dead rent money payed (sic) out to strange landlords and their investment properties”. (CB 697) Cross-examined by Mr Northrop, Robbie was asked:
Q: “Is dead rent a phrase you use, or a phrase your mother uses?‑‑‑
A: It's a phrase the family uses.” (T496, L8-10)
113 The previous afternoon, when Mrs Cresswell was being cross-examined, there was an exchange between the cross-examiner, Mr Northrop, Mrs Cresswell and myself, which I reproduce at length.
Q: “So those are amounts paid by Corey and Tamarand would be reimbursed. Do you understand it to mean that?‑‑‑
A: Could you say ‑ ‑ ‑
Q: Do you see the words ‘the amount paid in rent would be reimbursed’?‑‑‑
A: Yeah, Robbie is obviously quite wrong or what he would - may mean that part of - by way of getting a share of the profit would be a way of some reimbursement of that rent.
Q: No, no. Robbie says in this document that you provided to VCAT the amount paid in rent would be reimbursed. Did you remember reading that?‑‑‑
A: It doesn't say in full though, does it? It doesn't say in full.
Q: Does it say in part?‑‑‑
A: No, it ‑ ‑ ‑
MR MIHALY:
Your Honour, the witness can't talk to what the author meant. The witness has said that if - whatever it means, he was wrong. I'm not sure she can give more evidence beyond that.
HIS HONOUR:
Q All right. Well, look, perhaps I might ask this question - I don't know that we have dealt with it directly - as I have understood it, … Robbie wasn't part of these arrangements at all, that they involved you and your husband, your son Corey and to some extent your daughter Tamarand, but Robbie wasn't part of it at all?---
A: He wasn't directly in the purchasing of the property and the first - the thing is ‑ ‑ ‑
Q: Well, sorry, I'm coming to a point then. So therefore, is it possible that you or your husband prepared this letter from a wider knowledge than your son had and invited him to sign it to support the family?—
A: No, Your Honour. We did not. We didn't write this letter. Robbie has done this letter from his mind.
Thank you very much. Please continue, Mr Northrop.
MR NORTHROP:
Q: All right. So he says the amount will be reimbursed. Also if a profit was made Chuck and Gail were willing to share that with both Corey and Tamarand. This action allowing them not to lose out on dead rent money paid out to a strange landlord, and their investment properties, and ‑ ‑ ‑?---
A: Yes, correct, as I have said earlier that we consider dead rent to be to a landlord where you go in and you pay all of your rent. When you leave, you receiving nothing. But in this instance, because they were going to get a share of the profit when it was sold, they would in turn receive some of their money back, wouldn't they?
HIS HONOUR:
Q: Well, they would, but it would ‑ ‑ ‑?---
A: It could have possibly have - it could have ‑ ‑ ‑
Q: It would have been a much greater contrast to dead rent if Corey was being credited as payments towards equity in the property, the rent that he paid. That would be something that would really contrast with dead rent money, and it's usually the contrast that's made, isn't it? If you are an elder, you might be a parent or an uncle and you have got a young person there paying, I don't know, hundreds of dollars in rent and you say to him or her, look, you'd be far better off signing up to buy a house, enter into a mortgage. You'd still be paying hundreds of dollars - maybe a bit more - but every dollar you would be paying would be buying you an equity in a house?---
A: M'hmm.
Q: And what you are paying to the landlord, that is dead rent. That is the usual contrast that elders make to the youngsters, isn't it?‑‑‑
A: M'hmm.
Q: So the case that Corey is making is that that's exactly what happened here, that's what you and your husband were offering him, and this is what Robbie is saying in the letter. So I am sure that Mr Northrop is seeking to draw all these things together, so you obviously don't agree with that interpretation. So tell me why it's a wrong interpretation?‑‑‑
A: I don't fully understand all what you've said. I can't ‑ ‑ ‑
Q: Well, I'm not speaking about it in a legal sense. I'm talking about it in a colloquial sense that I have just been describing - the difference between dead rent and buying your own house?‑‑‑I don't have a comparison between your own house, I'm comparing receiving some money back at the end of the sale in comparison to the amount of rent that you have paid out. Yes?‑‑‑
A: Not all of it. Let's just say, you know, 500 a week but if ‑ ‑ ‑
Q: So the rent is not terribly alive, but it's not totally dead either?‑‑‑
A: Yeah, correct.
Q: All right. I understand?‑‑‑
A: Yes, correct.” (T467, L26-T470, L13)
114 Later, in his evidence-in-chief, Robbie was speaking of the concept of dead money and describing the conversations he had with his mother when she was organising finance to acquire the property in 2001/2002.
MR MIHALY:
Q: “Okay, so she's gone back to Broken Hill and you said that she was in the process of organising finance for the purchase?‑‑‑
A: Yes.
Q: And what did she say to you about how the proceeds might ever be - you know, shared ‑ ‑ ‑?‑‑‑
A: Yes.
Q: ‑ ‑ ‑ on the eventual sale?‑‑‑
A: Yeah, there was no set percentage of how it was going to be split up. What the conversation did - was said and revolved around was that I called it dead money in regards to if they were out in the general public and renting, well, that was going to go to someone else's bank account. They had an opportunity that when mum and dad decided to sell the property, Corey and Tamarand ceased studying, went and got better jobs or whatever else, they could then move on and buy their properties and there was a conversation there that if and when the property was sold, they had at least a possibility of getting some of their rent back. Now, that - instead of - and what I say with dead money, I was - if they were paying $125 a week and the landlord sold their property, they had no feasible way of recuperating any of that money again. The conversations that I had with both mum and dad in regards to Annie Borat was that they pay them $125 a week rent. They had a possibility of maybe down the track, if there was ever a profit made on the property, they might get a dollar back - which was always said within the family, well, that's better than paying dead money to someone else you don't know.” (T481, L16-T482, L12)
115 In his letter in support of Mr and Mrs Cresswell’s application to VCAT, their son, Robbie, stated inter alia:
“The property was purchased with the absolute understanding by everyone one in the family, as well as close friends, that the mortgage amount would be paid to Chuck and Gail in lieu of rent and once work and study had ceased, the property would be sold and the amount paid in rent would be reimbursed, also if a profit was made, Chuck and Gail were willing to share this with both Corey and Tamarand, this action allowing them to not lose out on dead rent money paid out to strange landlords and their investment properties.” (CB 697)
116 It will be noted that this formulation refers to “the amount paid in rent would be reimbursed”. This view is reflected, also, in what transpired at the VCAT hearing. Mr Cresswell told the Tribunal, “Well were not actually a landlord (sic), we’re just a family, because it’s a family investment … .” (CB 1185, L18-19) The member said:
“… it sounds to me like the payments that were being made by your son and daughter and now your son - was not rent as such, it was intended to be almost a contribution to an investment from what you’ve said.” (CB 1186, L16-20).
Mr Cresswell replied:
“They were never shareholders in the enterprise, they were going to be shareholders in when the property was sold that’s when they became involved, they would get money from it.” (CB 1186 L26-29)
Mr Cresswell also said:
“… we had an arrangement that he [Corey] pay, that the mortgage be paid fortnightly so we could get it in advance.” (CB 1188, L14-16)
Mrs Cresswell said:
“… when it’s sold we wanted them to get ahead in life, we agreed if they were going to put money in, we wanted to see them that they could get into a buyer’s market. So I did. I said to them, ‘and when it’s sold you’ll get a share’.” (CB 1203, L20-24)
The member sought to characterise Corey’s position as follows:
“… he claims an equitable interest, either pursuant to a constructive trust which is the agreement that you have that he would contribute – he and his sister would contribute to the mortgage and in turn they would acquire an interest, or on something called the resulting trust which is that if I give you $100,000 and you – keep the maths simple, you buy a $200,000 property and put it in your name, I can put a caveat on it and claim a resulting trust for the $100,000 of my money you put into it.” (CB 1207, L18-27)
Mrs Cresswell replied, “We’re not disputing any of that anyway”. (CB 1207, L28)
117 Mr and Mrs Cresswell and their son, Robbie, sought to explain all that away on the basis of mistake, carelessness, a lack of acquaintance with legal technicalities and so on. Daughter, Tamarand, gave evidence in support of Mr and Mrs Cresswell’s case. Under cross-examination, she agreed, telling a solicitor acting for Corey that, “If the property was sold they would get back what they put in and would get a share of the profits”. (T442, L6-9) When a witness statement to this effect was proffered for her signature, she declined to sign and in her evidence sought to explain it away.
118 These considerations are supportive of the view that Mr and Mrs Cresswell entered into an arrangement with their son, Corey, and their daughter, Tamarand, and later with Corey alone to protect him from outlaying “dead money paid out to strange landlords and their investment properties”. The payments which Corey made initially to his parents and, thereafter, to the Commonwealth Bank, were under the arrangement to count as equity in the property accruing to him. This accords with the natural and popular notion of avoiding the payment of rent as “dead money”. It has a far great plausibility than the somewhat nebulous concept of the money’s not being “dead” because of the prospect of sharing in a profit which might or might not be made at Mr and Mrs Cresswell’s sole discretion. Again, it seems likely that what has soured the attitude of Mr and Mrs Cresswell is the break which occurred with Corey in late 2009, during Mrs Cresswell’s illness. This is, to some degree, indicated by what Mrs Cresswell did immediately after the incident and is described in a passage which I quoted from her evidence where she immediately commissioned a local estate agent in Brunswick to seek to sell the property over the head of Corey and his partner.
119 It follows that I agree with Ms Liden of VCAT that Corey was not a tenant of his parents. Further, he was not, as Mrs Cresswell’s case contended, a mere licensee. He held an equitable interest pursuant to the various arrangements which were made. This finding is broadly consistent with the alternative 2002 and 2004 agreements relied upon by the plaintiff. It should also be noted that Corey’s siblings, Robbie and Tamarand, both benefitted from property arrangements with their parents, though the properties seem to have been less valuable than the Brunswick property.
The 2009 Agreement
120 Mr Northrop announced that his client placed primary reliance upon his application for specific performance of the 2009 agreement. Mr Mihaly, on behalf of the Cresswells, submitted that the conversation alleged between Corey and his father in 2010 was “… largely meaningless. Notwithstanding it is denied, even if it occurred, it bears no correlation to any discussions between the parties at all.” I accept that submission and put the 2010 discussion to one side. As to the alleged 2009 agreement, Mr Mihaly submitted that the evidence supporting it from Corey was inadmissible. The relevant passage appears at transcript 165, where Mr Northrop asked Corey:
Q: “Whilst you were at Broken Hill do you recall was there a discussion with your mother about the property, 3 Annie Borat Close?” (T165, L13-16)
A: “Yes, there was. I discussed with my mother at that time that I wanted to go ahead with the transfer of title, to which she agreed and she showed some enthusiasm for and as a result of that conversation I made contact with the Commonwealth Bank manager in regards to taking over the mortgage and I garnered his advice about how to do that, and I also contacted real estate agents in Melbourne to get some valuations performed.” (Ibid L16-24)
121 Mr Northrop then said:
Q: “All right. Perhaps I can just take you to – a bit more slowly, as far as the agreement was concerned, did it involve payments by you?---
A: Most definitely.” (Ibid L25-27).
At lines 28-29, Mr Northrop said:
Q: “In your discussions with your mother was - the payments discussed with your mother?”
122 Mr Mihaly then objected and said that questions on these crucial matters needed to be non-leading. (T165, L30-T166, L2)
123 I then asked:
Q: “… on what terms did you discuss with your mother having the property transferred to you?” (Ibid L3-5)
Corey replied:
A: “At that stage my mother suggested that I pay her back the – pay my parents back the initial deposit and all their out-of-pocket expenses related to the property only.” (Ibid L5-8)
I then asked what was an out-of-pocket expense, and Corey replied: “To that point, what they had paid in council rates” and he added, “and the other costs associated with the purchase.” (Ibid L11-12). Mr Mihaly noted that it was only a further question by Mr Northrop: “Who was to make the payments on the mortgage in 2009?” (Ibid L20-21) that elicited the response from Corey that he would take over the mortgage and pay the outgoings. (Ibid L21-25) As I would understand, the rules against leading questions in evidence-in-chief, (s37 of the Evidence Act 2008), are still elucidated by matters established under the common law of evidence so that counsel examining in-chief should exhaust a witness’s memory but may then direct his attention to a particular subject matter. By the time the second question was asked, I believe the witness could be regarded as having exhausted his memory. Perhaps it might have been more appropriate, in accordance with hallowed practice, to ask: “Was anything said about the mortgage?” (Rivers v Hague (1837) MS cited in Best on Evidence, 3rd edition, s641. See Phipson on Evidence, 18th ed. para 12-21 at 378) In substance, I believe there was no injustice involved in receiving and acting upon this evidence, especially when it is common ground that Corey did, in fact, commence making payments directly to the mortgagee. There was also contemporary evidence of Corey taking steps to obtain a valuation and raise money from the Commonwealth Bank. Mr Mihaly submitted:
“…such conduct is not determinative of the existence of the alleged 2009 agreement or any agreement at all. It is equally possible that the conduct was as part of planning by Corey in relation to an unreached agreement or in anticipation of a proceeding such as this in which Corey seeks to compel his parents to sell to him.”
124 I accept that these contemporary matters are not conclusive and may also be consistent with hypotheses other than that the 2009 agreement was made as alleged. Nevertheless, this interpretation, that is, that they support the 2009 agreement as alleged, is the most plausible interpretation in my view. Mr Mihaly also observed that the 2009 agreement would make sense only in light of the existence of the earlier agreements in 2002, 2004 and 2007. He said the existence of those agreements should be rejected and this, therefore, subverted the existence of the 2009 agreement. For reasons explained above, I do not accept that the earlier alleged agreements did not take place and Corey was, as at 2009, merely a licensee, with no interest in the premises. Mr Mihaly also observed that, “in numerous different ways, Corey did not meet the obligations under the loan to the CBA as was required by the alleged agreements”. He gave numerous examples; but breaches of contract, or what might be supposed to be breaches of contract, if there was a contract in force, do not, by themselves, disprove the existence of a contract. Most proceedings in the Commercial Division in this Court or, indeed, any court, entail allegations of breaches of contract where the existence of the relevant contract is not in dispute. Mr Mihaly also pointed to a number of matters which impeach Corey’s credibility, principally relative to his taxation affairs. As to one of these matters, I granted a Certificate under s128 of the Evidence Act 2008, with respect to the answers which he gave. These matters scarcely enhance Corey’s credibility but, nevertheless, the probabilities, in my view, support the existence of the alleged 2009 agreement. Mr Mihaly also said:
“…at the time of the alleged 2009 agreement, the relationship between Corey and Gail was sufficiently strained that Gail and Chuck would not have engaged in a discussion of the nature alleged by Corey or granted him a gift of the appreciation of the property and the mortgage repayments that they had made since 2002.”
125 The evidence of the timing of the events in Broken Hill in 2009 was uncertain; nevertheless, I accept the submission put by Mr Northrop that the 2009 agreement occurred before the crucial break between the parties resulting from the incident where the ambulance was called. Mr Mihaly also submitted that Mr and Mrs Cresswell used the Brunswick property “as of right”. The evidence showed that the third bedroom was marked for their use and they used it from time to time, until their furniture was returned to them in Broken Hill at some uncertain date. This occurred when a carrier took certain of Corey’s furniture to Brunswick. It may be that this occurred in the wake of the break between the parties. Acceptance of the plaintiff’s case, based on the alleged 2009 agreement, would lead to a finding that the parties to this proceeding were co-owners in equity pending its specific performance. Use by any of the co-owners “as of right” would not, in itself, be a contra-indication to co-ownership.
126 It may be accepted that there are liberal references in bank records, diaries, budgets, et cetera, emanating from Corey to his outlays, relative to this property, as “rent”. These matters, Mr Mihaly submitted, were “a statement by him admitting that he was making rental payments rather than contributions.” These statements could, nevertheless, be consistent with what was said by Robbie in his letter to VCAT that these payments were “in lieu of rent” which he later modified in his viva voce evidence to read “in way of rent”.
127 Mr Northrop submitted that an agreement could be found based upon the reaching of an understanding between the parties, even in the absence of any process of offer and acceptance. He referred to P’Auer Ag v Polybuild [2015] VSCA 42 at [11] per Whelan JA, Brogden v Metropolitan Railway (1877) 2 App Cases 666, Vroon BV v Fosters Brewing Group Ltd [1994] 2 VR 32 and Empirnall Holdings Pty Ltdv Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523. He said:
“The conduct of the plaintiff was to make payments; the conduct of the defendants was to cease making payments either to the mortgage or [relative to] outgoings.”
128 In support of the view that the break between the parties occurred late in 2009, Mr Northrop referred to an email sent by Mr Cresswell to Corey on 6 December 2009. (CB 544) He said “the tone of the email is friendly …”. It referred to Mrs Cresswell having queries regarding accounts, and Mr Northrop noted that Mrs Cresswell was not dealing with accounts for some time after the ambulance was summoned and this period extended into 2010.
129 Ultimately, the major point which Mr Mihaly relied upon to obtain a negative finding as to the making of the alleged agreement in 2009 was, what he said, a disconformity between the agreement alleged at Clause 4G of the Second Amended Statement of Claim and the evidence of Corey. Mr Mihaly said:
“In relation to his primary and his preferential position, he [Corey] added a further term that he would repay his parents’ mortgage contributions, directly contradicting the opening of his counsel and the aide memoire entitled ‘Proposed Payment by the Plaintiff’. The consequence of these variations not only results in the conclusion that Corey has no firm recollection of what was discussed but it also prevents Corey from proving any of his allegations that the agreement was reached or that he had the necessary intention associated with them.” (T677, L9-18)
130 He was referring to the answer given by Corey in cross-examination as follows:
MR MIHALY:
“With respect, Your Honour, there isn't, if I can ---
HIS HONOUR: I assumed you would say that. I am just thinking, where is the document that was handed up? Certainly there was a bundle of documents with timeline on the front.
MR MIHALY: That is the bundle, Your Honour.
HIS HONOUR: All right. So how many pages in do we have to go or is it at the back, or ---
MR MIHALY: It is the fourth page, Your Honour.
HIS HONOUR: All right. Proposed payment by plaintiff.
MR MIHALY: I will hand my copy to the witness. I should be able to do this from memory? --- Thank you, very much.
So in the document that your barrister has handed up at the start of this proceeding, this is the proposed payment by you to receive the whole of the property. Do you accept that? --- Yes.
And as we look through the payments that you are proposing to make, there is an allowance for the deposit? --- Yes.
There is an allowance for the mortgage balance as at some date in 2013, I think August 2013? --- Yes.
There is an allowance for mortgage payments in a very specific period in 2013? --- Yes.
Then there are four named outgoings; home insurance, council rates, Yarra Valley Water, State Land Tax has been proposed, and those amounts are blank? --- Yep.
But you name them. There is no allowance whatsoever for repaying any mortgage repayments that your parents have made over the years except for that defined narrow period.” (T214, L20 – T215,L16)
131 A couple of pages later, the following exchange occurs:
“That's right. And in fact, you're now saying, are you - sorry, I'll withdraw that - and when you were examined by your barrister and you were talking about 2009 you made no mention about the agreement specifically including repayment of mortgage repayments made by your parents. That never came up, did it? --- Did I say all out-of-pocket expenses?
You did, but you didn't specifically say - and if memory serves, and we can go to the transcript in due course - His Honour actually asked you what was meant by that and in your clarification you made no mention of mortgage repayments? --- Okay.
So in fact you've just changed your story again in the witness box, haven't you, to now expand to saying outgoings includes mortgage repayments made by your parents? --- No, I haven't changed my story.” (T216, L1-16)
132 The relevant passage in the Second Amended Statement of Claim calls for payment of:
“(iii) other outgoings that had been paid by the defendants in respect of the property.”
133 Mr Northrop submitted that the expression “outgoings” was wide enough to cover un-recouped mortgage payments made by Mr and Mrs Cresswell. He also handed up a table showing that Corey’s letter dated 12 June 2012, referred to above, offering his parents $320,000 was in accordance with a calculation which, at that date, would have allowed for the payments made by his parents to that date which he had not reimbursed to them, leading to a total figure of $308,278, some $11,000 odd dollars less than the offer actually made.
134 Mr Mihaly objected that in his letter Corey explained the basis of his calculation and it included no allowance for un-recouped or reimbursed mortgage payments made by his parents.
135 The need in justice and common sense for a provision to reimburse Mr and Mrs Cresswell for the mortgage payments they had made and for which they were not reimbursed is obvious enough, even in the context of an arrangement where parents wish, as a matter of beneficence, to spare one of their children from wasting money on “dead rent paid to strange landlords”. The need for such a clause is so obvious that I venture to think that an officious bystander who enquired of parents and a child in those circumstances would receive the response “of course”. This was the response effectively made by Corey in cross-examination; but there is nothing in the Second Amended Statement of Claim or, for that matter, any of its predecessors invoking implied terms or the officious bystander.
136 Corey’s explanation is that his commitment to pay “other outgoings” as per the paragraph in the Second Amended Statement of Claim, or “out-of-pockets”, according to his evidence in cross-examination, covered these amounts. Mr Mihaly correctly observed that when I asked Corey what “out-of-pockets” were, he did not mention un-recouped mortgage payments by his parents. He referred to items such as council rates and costs associated with the purchase of the house. (T166, L6-9)
137 In ordinary parlance, to speak of “outgoings” on a property would entail reference to things such as rates and taxes and utility charges. Mortgage payments, especially repayments of principal, would not generally be seen as falling within the rubric of “outgoings”.
138 With some hesitation, however, I conclude that in the context of this type of arrangement, the word should be regarded as bearing a more expansive meaning, perhaps more along the lines of the word “outlays”, which would seem to cover any class of monies which might be outlaid in respect of a piece of property.
139 In my view, Corey’s answer to me in which he gave a restrictive meaning to the word “outgoings” was simply an error, and he readily agreed that un-recouped mortgage payments made by his parents constituted something which needed to be included in the “payout” to which his parents were entitled.
140 In those circumstances, there should be a decree of specific performance in favour of the plaintiff. Mr Northrop, at the conclusion of the case, handed up the table headed “Proposed Payment by Plaintiff”, showing a total figure of amounts payable to Mr and Mrs Cresswell and to the mortgagee of $338,720. This would appear to be generally the appropriate figure, subject of course to adjustment to bring it up to the date of payment, to reflect issues of rate adjustments, costs of discharge of mortgage, etc.
Other relief
141 Given that the plaintiff has obtained the relief which is his primary application, it is unnecessary to deal with the constructive trust and resulting trust claims relied upon as “fall back” positions.
142 It is sufficient for me to observe that insofar as success, based on either of these claims, was dependent upon the establishment of a detriment sustained by Corey as a result of acting upon the faith of arrangements with his parents, it is difficult to see how he has suffered a detriment in light of the expert rental evidence relied on by Mr and Mrs Cresswell showing that Corey was not paying above market rental. To put it another way, Corey would be no worse off if his claims to an equitable interest in this property were to fail, than if he had simply gone to the private rental market for the period from 2002 to date.
143 It may be that a detriment might be established based upon the view that what Corey paid to his parents and the mortgagee would, in the absence of a decree enforcing the 2009 agreement, be “dead money”, but he lost the opportunity of entering the market as a home buyer purchasing a property from an independent vendor outside his own family. These matters were not gone into in evidence in any way. Whilst a finding of detriment along those lines might in theory be made, the evidentiary basis for it does not seem to have been made at the trial in this proceeding.
Relief
144 I will direct the parties within 14 days to bring in short Minutes to give effect to my reasons.
Costs
145 I have heard no submissions on the question of costs and so I will reserve them.
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