Dyke v Dyke
[1998] VSC 211
•23 December 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 4922 of 1997
GRAEME LESLIE DYKE Plaintiff v. WILLIAM LESLIE DYKE & ORS. Defendants
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JUDGE: CUMMINS, J. WHERE HELD: MELBOURNE DATE OF HEARING: 9-30 NOVEMBER 1998 DATE OF JUDGMENT: 23 DECEMBER 1998 CASE MAY BE CITED AS: MEDIA NEUTRAL CITATION: [1998] VSC 211
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr. M. Heaton Oakleys Rickard For the Defendants Dr. C. Hanscombe Birch Ross & Barlow
HIS HONOUR:
This proceeding commenced on 7 April 1997 at which time the plaintiff, Mr Graeme Leslie Dyke, undertook proceedings against his father, Mr William Leslie Dyke, his mother Mrs Shirley Joyce Dyke and his two younger brothers, Mr Stewart Gordon Dyke and Mr Andrew James Dyke for declaratory and other relief in relation to property at Dollar, South Gippsland. The property is constituted by various parcels of land, and stock plant and equipment thereon, which together are operated as a family dairy farm. Essentially the plaintiff's claim now is for declarations that his father the first defendant (who is the registered proprietor of the relevant Homestead property) holds that property on trust for himself and the plaintiff as tenants in common in equal shares, and that his father and mother the first and second defendants (who own the stock plant and equipment) hold those items upon trust for themselves as to half and for the plaintiff as to half as tenants in common in equal shares.
On 21 August 1997, the Master struck out the original statement of claim and granted the plaintiff leave to file an amended statement of claim. On 19 September 1997, an amended statement of claim was filed. On 27 October 1997, the Master struck out that amended statement of claim as against the fourth defendant, Mr Andrew James Dyke (who thereafter has not been a party to these proceedings) and granted leave to file a further amended statement of claim. That further amended statement of claim was filed on 24 November 1997. It is that which is before me for determination.
Mr Graeme Leslie Dyke, the plaintiff, is the son of the first two defendants. He was born on 25 July 1964 and is now 34 years of age. His brother Stewart, the third defendant, is now 31 years of age. His brother Andrew, no longer a defendant, is 32 years of age.
The first defendant's family history relevant to these proceedings is that the first defendant's father died on 1 November 1972 and from September 1973 the first defendant was the sole registered proprietor of land originally in his father's name being comprised of three parcels of 26, 189 and 84 acres called The Homestead property, at Dollar. In an unhappy pre-echo of the present case, the first defendant gave evidence of a family dispute in the previous generation concerning himself, his elder brother and his parents in relation to the then family dairy farm at Dollar. In the event the elder brother was bought out, many years ago, and left the farm to live elsewhere, whereupon the first defendant remained on the farm with an increased shareholding.
The first and second defendants have, since April 1981, been tenants in common in equal shares of a parcel of 100 acres known as Green's, subject to mortgage, and as joint proprietors from March 1993 of a parcel of 26 hectares known as Gilliam's.
The plaintiff and the third defendant have, since December 1987, been tenants in common in equal shares of a parcel of 50 and a half hectares known as Bruce's, subject to mortgage, and from April 1992 registered proprietors as tenants in common in equal shares of four parcels constituting 222 acres known as Nick's, subject to mortgage.
The property known as Gilliam's joins The Homestead property to the west. The property known as Bruce's adjoins The Homestead property and Gilliam's to the south. The property known as Nick's adjoins The Homestead property to the east. The property known as Green's is a short distance to the south and separate from Bruce's. The properties are worked as one integrated dairy farm.
The plaintiff's case is that in December 1980 and thereafter he physically farmed with his father, and with other brothers to whom I shall refer, The Homestead and other properties, as one dairy farm. He had attended Leongatha High School until he completed Year Ten. He was then engaged by his parents as a farm apprentice for the calendar years 1980-1983 and was paid apprentice wages, full board and clothing and after 1983, a $25 a week petrol allowance. The specific terms of the salary are set forth in paragraph 8 of the further amended statement of claim. After 1984, when he concluded his apprenticeship, he continued to work on the farm for award wages and other benefits stated in paragraph 9 of this further amended statement of claim. At all times the plaintiff worked long hours, as was appropriate on a dairy farm. The gravamen of this case is not a complaint by this plaintiff that he worked long and hard helping to build up the family farm – which he did – for modest award wages, but rather that for more than ten years he did so upon an agreement representation and expectation that he would come into half the property, which prospect has now been denied, he thereby foregoing more than a decade of development of a farm of his own.
The fountainhead of this case derives from a conversation which the plaintiff says occurred at the 1000 bale hayshed between himself and his father in May 1986 on the Homestead property. In essence, the plaintiff alleges - and I shall come in detail to the conversation deposed to - that his father agreed with him and promised him that he the plaintiff would receive half the Homestead and half the stock, plant and equipment upon his parents, the first two defendants, being in a sufficiently independent financial position to effect it, which was anticipated to be when he was 35 years of age or thereabouts or earlier by agreement or later if necessary. In that May 1986 conversation, the plaintiff alleges that his father, the first defendant, stated that Green's would go to Andrew, that the sole daughter Jenny would receive superannuation policies to the extent of $120,000 value, Green's being of a similar value, and that the other half of the balance of the properties was to go to Stewart.
The defendants deny such a conversation ever occurred.
It is further alleged on behalf of the plaintiff that, by reason of that conversation and pendant conversations, it was the common intention of the plaintiff and the defendants that he continue to work the farm upon the agreed or assumed state of facts which I have stated. It is further alleged by the plaintiff that he was induced to work the family farm for wages only on that basis also. It is further alleged by the plaintiff that he acted upon those representations and did so to his detriment.
The defendants deny that there was any common intention other than the fact that the farm was worked as one farm and deny that there was any inducement or any detriment, saying that the plaintiff was always paid proper award wages, was permitted to take holidays if he wished and had never claimed for back wages as alleged.
In October 1987, Bruce's was purchased by the plaintiff and the third defendant. They each were lent $9000 by their parents to assist the purchase, and they undertook a $32,000 borrowing from IOOF (paid out by 1990), themselves providing the balance from their own funds. In 1992, the repayment from the plaintiff and the third defendant of $9000 was waived by the first two defendants. Bruce's was to be incorporated by fencing and the establishment of tracts leading into the family farm so that it could continue to be developed as a family farm. The first and second defendants were to lease Bruce's at $12,000 per annum which sum was to be utilised by the plaintiff and third defendant in progressive reduction of the IOOF loan.
In September 1991, the plaintiff and the third defendant contracted to purchase, and in April 1992 did purchase, Nick's for the sum of $344,900 borrowing monies, including $300,000 from PIBA to that end (paid out by 1997). It was agreed that the first and second defendants lease Nick's from the plaintiff and the third defendant, similarly to the lease on Bruce's and that the rent payments would be applied similarly to the loan, in this instance from PIBA.
Again Nick's was to be incorporated by fencing, the establishment of tracks and of a water supply so as generally to link in with The Homestead so that the farm could be worked as one farm and developed as a whole. There was no dairy on Bruce's and no working dairy on Nick's.
In April 1992, there was a change of financial arrangement between the parties. The lease payment of $12,500 per annum in relation to Bruce's and of $100 per acre in relation to Nick's was to cease but in lieu thereof the plaintiff and the third defendant were to be paid half of 30 per cent of the milk cheque from the family farm, that is 15 per cent each, and that such arrangement was to come into operation from 1 July 1992.
In February 1993, the first two defendants purchased the property Gilliam's adjoining The Homestead to the west. It was essentially a landlocked property and required re- fencing of the boundary between it and the next door property. After the purchase of it, gates were to be installed so as to integrate Gilliam's into the family farm. Tracks were to be established linking The Homestead and Gilliam's and Gilliam's was to be developed as part of the family farm by the establishment of a creek crossing, earth- moving works to level the land and improve the dam and by the installation of a water supply system.
The son Andrew returned to the farm in July 1993 in circumstances to which I shall come. Previously, Andrew gave advice in relation to making the family farm financial arrangements more tax-effective, Andrew being a qualified and practising accountant and partner in an accounting firm before he returned to the farm. In April 1993 the first defendant proposed the return to the farm of Andrew.
With the expectation that Andrew Dyke would return to the farm in mid-1993, the plaintiff alleges that the first two defendants represented to him that he should agree to Andrew returning onto the farm but that he would start as the plaintiff and the third defendant had done and work his way up and discussions were held, according to the plaintiff, to that end. The plaintiff claims that he agreed to that limited proposal.
The plaintiff generally claims that he was induced to continue to work on the farm for laborer's wages by the underlying agreement and later representations deriving from the fountainhead discussion of May 1986 with appropriate variations to comprehend later purchased properties which I have specified. Corollaries included the purchase of a new vat in the second half of 1983 and construction of a new dairy on the Homestead property.
It is alleged by the plaintiff that in approximately August 1994, that is a year after Andrew returned to the farm, he had a discussion with the first defendant about the developing situation with Andrew and that the first defendant said to him that the farm was going three ways now and "there is not a bloody thing you can do about it". That discussion occurred at the square trough below the cowyard on The Homestead. (Andrew now lives in the family home but has purchased a property at Tarwin).
Finally the plaintiff alleges that in October 1994 an offer of $300,000 in cash and other items, and in April 1995 an offer of $500,000 cash and other items, was made to him by the first defendant in order to buy out effectively the expectation and agreement which had been engendered from the May 1986 conversation. The defendants deny such offers were made.
As I say, proceedings were issued in April 1997 and have been varied thereafter in the form that I have defined. Essentially the plaintiff seeks declarations to secure his position as to the future, the terms of which I shall shortly come to.
Although a vast amount of detail was comprehended in the trial before me, the pivotal matters for determination are first the contents of the May 1986 1000 bale hayshed conversation, the circumstances of Andrew's return in the middle of 1993 culminating in the conversation to which I have just referred in August 1994 between the first defendant and the plaintiff, a family discussion at the dairy in September 1995 and a family discussion in the Homestead kitchen on 16 July 1996.
The plaintiff gave evidence before me of the pivotal conversation in May 1986 beside the 1000 bale hayshed as follows:
"I usually put the dry cows down behind the 1000 bale paddock and I was heading down there on the tractor and I saw the milkers eating at the haystack at the 1000 bale hayshed, and I didn't stop to chase them away, I continued down to feed them up, feed the dry cows that I set out to do, and when I was coming back past it, I chased them away, chased the cows away from the shed, and I put up the portable wire that was around, it had no power on it, so I thought it was a waste of time, and then I continued back up to feed the other lots that I had to feed, and after I fed up, I cleaned the carry-all off. And I went to get some posts that we have a supply of on the farm, and the wire, some barbed wire, and the tools to put up some posts. And I continued down, and I was going to put a permanent fence around this hayshed to stop the waste at the stack. And I was digging some holes and my father came down a while after I started and he said, 'What are you doing?'. And I said, 'Well, what does it look like I'm doing?' and I was pretty upset and angry. And he said to me, 'What's the matter?'. And I said, 'Well, come around and look at this bloody stack and it speaks for itself', and they had sort of eaten into it, and they were falling down - square bales are fairly hard to cart and we were just sort of phasing them out, and we were going into the round bales at the time and then he said, 'Look Grae, all I can tell you, it's no more in kitty that I can pay you - - -'.
"Did you say anything to him before that?---I didn't - oh yeah, I said to him that I was a trained farmer, I'd done my apprenticeship and I'd done all the 'AI' (artificial insemination) and I was improving the stock, and I said to him that I didn't know why I was so bloody silly for all the long hours that I was working on the farm and I wanted to know where I was heading for the future and he said, 'Look, Graeme, all I can say is that it's no more in kitty to pay you. I haven't got any more money to pay you for a wage, but all I promise you, your brother Stewart has chosen the same life as you have, and I promise you half The Homestead each, and Andrew and Jenny have chosen the same life, and Andrew can have Green's and Jenny can have my superannuation which is worth approximately $120,000'. And he went on to say that, 'We are getting more and more machinery in all the time that is helping you, you and Stewart, and that stock numbers are increasing too which will help you both in time.'
"When he mentioned the value of his superannuation, did he say anything further about Green's?---He just said in his opinion Green's was worth approximately $120,000 at that time.
"Did he say anything else to you at that stage?---That he wanted me to be on the farm because I was an important cog in the works and he wanted me to keep there in developing and running the farm as we had been doing in the past.
"Did he mention to you anything about his parents in that conversation?---He said that he had to wait for a time in his life that his parents was in a position to help him and I was only a young lad in his belief, he didn't think that I needed any more money than I was receiving...He just told me that I was a young single lad and that I didn't need any more money than I was receiving off him at the time.
"Did he say in that conversation what he might do in the future, so far as you were concerned?---Just that he had to wait for the time in his life till his parents was in a position to help him. And he just said that it was a time in his life, and that he was older than I was, and that he had till wait till that, they were in a position to help him.
"Did he say anything as to the future so far as you were concerned in relation to that?---Just said that he would look after me and that he was a man of his word; his word was his word.
"What did you say in response to what he said?---I said, "That's fair
enough" and it sort of calmed me down a bit.
He was asked: "As a consequence of that conversation, how did you
regard your situation as continuing to work on the farm?---I thought it
was secure."What about in respect of the wages that you received?---Well, I thought I wasn't getting quite as much wages at the time but that it would be worked out later, like, I'd get more for later on.
"He went on: I knew that I was getting a lower wage but in time it was going to be rewarded, that I was going to be rewarded extra at the end of the day'.
"And you continued to work on the farm?---Yes".
In the pleadings the defendants, particularly the first defendant, denied that that conversation occurred.
In cross-examination of the plaintiff particularly on behalf of the first defendant, the following was put:
"Now, you say that this conversation took place in 1986 by the 1000 bale
hayshed?---That is correct". "Was there hay in the shed?---Yes.
"Square bales, wasn't it?---Yes.
"That's what was stacked in the shed?---Yes. That's correct.
"You don't keep hay for two years, do you?---We keep hay up to five
years."In an open sided shed like that?---Yes. It wasn't open sided. It had one side filled in with tin and the other side was open and we were at the process going into round bales, as I said the other day and we were starting to phase the square bales out. They're a lot harder to work than the round bales.
"Was there hay in the shed that day?---Yes. There was.
"How much?---The shed was nearly full.
"If the shed was nearly full, it's unlikely, isn't it, that that hay had been there for a very long time?---Well, it was further away from the shed and usually, you used to use the hay close to the shed, especially the square bales for the poddies, and mainly in the racks for the round bales. The shed was three parts full. It was further away from actually the milking shed.
"So, it's unlikely, as I said to you, that if it was three parts full, you say?
---Yes.
"That hay had been there for a long time?---That hay had been there for
quite some time because we were, as I said, we were starting to phase
the square bales out, because we found they were very much work. We
were getting more and more cows and we were going into round bales.
It was on the changeover period type of thing."How long would you say that hay had been there?---Up to four years.
"Your father will say that conversation never took place?---I know. He's
told me that several times. It's not true."After 1984 it wasn't just so much a changeover. In fact, the farm did not cut square baled hay, did it, after 1984?---We still got a few. We were phasing them out. We were mainly doing them and keeping them close to that daily place where we could feed the calves in the racks. We weren't using them a lot outside for dry cows and dairy cows and stuff like that. They were mainly used for racks.
"Your brother, Stuart, will say that after he began his apprenticeship in the beginning of 1984, he never handled any square baled hay, only round bales. Do you say he's wrong about that?---Yes. I do. I say Stuart used to cart. He carted up at Greens. Yes. I do.
"After he was apprenticed?---He came home in 1983. Yes. He was apprenticed for roughly four years. I would say up to 1986 we were phasing square bales out.
"Might you be wrong about that date?---No. I'm not."
The cross-examination later culminated with the question:
"I suggest to you that didn't happen at all because you wouldn't just go and get materials and embark on a two or three day job without telling your father?---That is not correct. That is not correct".
When the first defendant came to give evidence he denied that any conversation in terms deposed to by the plaintiff had occurred but he did not persist with the traverse of factual data which was put in cross-examination in challenge to the plaintiff. Nor did the first defendant deny that a conversation might have occurred in the circumstances which were plainly controverted in cross-examination of the plaintiff. At all times, however, all defendants have steadfastly denied that there was any May 1986 conversation of the substance as deposed by the plaintiff.
The plaintiff gave evidence that he continued thereafter to earn the limited salary that he earned, in reliance upon the agreement and representations and expectation deriving from that hayshed conversation. The plaintiff's complaint is not that he has been paid unfairly but rather that he has been denied the legitimate fruits of the agreement which was struck in May 1986.
It is in the end, necessary in order to determine this matter, for a careful judgment to be made about the credit of the plaintiff on the one hand and the first defendant on the other hand, upon the fundamental issue of the May 1986 conversation.
I was very impressed with the plaintiff as a witness both of honesty and of accuracy. I observed the plaintiff as a witness over time and including in cross-examination. He impressed me as a person prepared to give, and indeed did give, direct and frank answers to the questions put to him. The plaintiff impressed me as having a firm and clear recollection of events to which he deposed and in particular, to that May 1986 conversation. I consider all the probabilities are that at that time the plaintiff was getting, to use the vernacular, toey, as regards his future on the property. He was prepared to continue to work hard and long and he was prepared to continue to earn limited - not unfair but limited - wages. What he was concerned about was his future. That was a legitimate concern for him. He was prepared to continue to put his shoulder in and continue to work the family property but he wanted to know where he was heading. Given his age and general expectations that seems to me to be an entirely sensible and reasonable expectation for him to raise and I am affirmatively satisfied he did raise the questions he has said he raised with his father.
I do not accept the evidence of the first defendant that the conversation did not occur. On the contrary, I fully accept the evidence of the plaintiff that the conversation did occur and in the terms given by the plaintiff. I consider the first defendant was well aware that the plaintiff was getting toey. The first defendant well knew the risk of losing the senior son from the family property. The first defendant well knew the value of the plaintiff working on the farm as the senior son. The first defendant for those reasons gave the answers to the plaintiff that the plaintiff has deposed to. I shall, a little later in this judgment, attend with some more detail to the considerations relied upon by the defence in that regard.
It is unnecessary in this judgment to traverse in detail the development of the farm which occurred from time to time. After the May 1986 conversation, the next critical development which occurred and which triggered the difficulties that the family found itself in was the return of Andrew.
Andrew had pursued successfully a career in accountancy. He had become a partner in a firm of accountants in Foster, Gippsland, but he found the work stressful and the responsibilities of concern to him, and wished to return to the family farm. It was his return to the family farm which has triggered the problems which have derived thereafter. Not because of any fault of Andrew's, who impressed me as a decent and honest witness, but rather because, in a story that is as old as the Bible itself, the return of the son was not welcomed by his sibling.
The plaintiff says he agreed to Andrew's return upon the limited basis of which he gave evidence. After a year, however, the constricted and limited basis was proving to be both unacceptable and unworkable to the first two defendants for reasons which one can understand, and ultimately in August 1994 matters came to a head after the plaintiff had yet again raised the question of the position of Andrew in the scheme of things with his father. The plaintiff gave evidence that the first defendant said to him, "As far as I'm concerned, Graeme, everything is going to go three ways now and there is not a bloody thing you can do about it". That was the catalyst which ultimately has led to these proceedings. The plaintiff gave evidence that a year earlier his father had said that he had made "a blue" with Andrew coming back on the farm and that he needed time to fix "his problem". The problem was, I consider, that when the first defendant made the agreement he made beside the thousand bale hayshed in May 1986 he had not anticipated the return of the third son. The third son returned. The first defendant considered he should accommodate him but the plaintiff was not to be moved. Unsurprisingly a number of unhappy events occurred in the family thereafter.
In September 1995 a heated family discussion occurred at the dairy. On 16 July 1996 a heated family discussion occurred at the household.
Mrs Deborah Dyke gave evidence that she and her husband were married on 18 March 1995. They commenced to live on the family farm and then Nick's. The first child was born at the end of that year. She gave evidence that on their honeymoon in March 1995 her husband "had a lot on his mind". He was not very relaxed at all. Question: "Are you able to say without describing any of your conversations what the concern was?---About the family farm". Then in September 1995 she said that she took her husband into town shopping because he had become agitated because the cows had been needled. The next day she received a telephone call from Mrs Dyke asking why the plaintiff was not attending to his duties, milking. Again, in July 1996 the plaintiff had become upset over the tails being cut off the cows, and a further family discussion was held, on this occasion at the household.
I was impressed with Mrs Deborah Dyke as a witness. She, like her husband the plaintiff, impressed me as being a straightforward and honest witness. She was a person with an understanding of the situation that her husband was going through, and a concern as to its effect upon him. In particular, I accept that Mrs Deborah Dyke, in the household conversation in July 1996, said to the third defendant, Stewart, "You mean to tell me that you've purchased land on either side of your father's farm and you have not made any agreement with him?" - a comment which demonstrates the logic of the plaintiff's case. I accept the truthfulness and the accuracy of the evidence of Mrs Deborah Dyke.
It appears to me that the plaintiff has set out on a lonely road, and with his wife, in pursuing the claim he pursues, but he has sought to be vindicated at law, which is his entitlement. The unfortunate odyssey of the plaintiff further confirms that his evidence is truthful.
Evidence was given on behalf of the defendants by the first defendant, the second defendant, the third defendant, and other persons to whom I shall later refer. The first defendant denied the May 1986 conversation. Apart from the question of credibility of the plaintiff, to which matter I have referred, it is necessary to refer to some discrete items that are relied upon by the defendants.
It is first put that the expectation expressed by the plaintiff as to history's course following itself is demolished by the circumstance that the first defendant's family history was not precisely that which the plaintiff says the first defendant stated beside the 1000 bale hayshed. I do not consider that matter is of significance. The first defendant was not giving the plaintiff a history lesson beside the 1000 bale hayshed. He was, I consider, accommodating the situation which had arisen before him and was referring to historical matters holistically and in aid of his representations.
It was next put that, and strongly relied upon, the 1000 bale hayshed conversation is demolished by reason of the circumstance that there was not $120,000 of superannuation available at the time. Again, I consider that circumstance does not negate the plaintiff's evidence. The first defendant was not giving an exposition of accountancy, but was dealing with the situation which arose before him. I regret that I am obliged to say that I was unimpressed by the evidence of the first defendant generally and particularly in relation to the matter of superannuation. He asserted that he did not have superannuation but had only endowment. Exhibit 1 was the subject of cross-examination, and as is plainly apparent, the Prudential Australian Self-employed Persons Superannuation Fund policy was taken out on 9 June of 1969 by Mr Dyke. I do not accept that he did not know that he had a superannuation policy. All the evidence of both the first and second defendants impresses me that they are people of precision and people of care, and I conclude that the first defendant did know the nature of the policy which he had been paying for continually since that time. I also regret that I am obliged to say that the demeanour of the first defendant in evidence, in repeatedly finding it difficult to either pronounce the word "superannuation" or understand it, was not convincing. I accept the accuracy and truthfulness of the plaintiff's evidence on this as on other matters. The plaintiff was cross-examined thus:
"(The first defendant's) evidence will be at that stage he didn't have superannuation, he had a life insurance policy?---He said his superannuation was worth $120,000.
"I'm telling you his evidence will be at that stage he had no superannuation, he had some life insurance policies; would you want to comment on that?---Well, what my father told me at the shed that Green's was worth, in his opinion was worth $120,000 and he had a life insurance – no, sorry, a superannuation worth $120,000. That was exactly the words he used to me; I'm repeating it back in the courtroom.
"These policies we'll be putting in evidence in due course and they were at that time worth very much substantially less than $120,000 and were like $20,000?---I don't know what they were worth. I got told in those terms".
The defence also relies upon the circumstance that the plaintiff deposed (and the first defendant denies) that in late 1987 the first defendant said to the plaintiff he could go in and check the first defendant's will at his solicitor's office, when in fact the will (exhibit 2 before me) does not reflect the 1986 agreement. But the circumstance that the will did not reflect the agreement does not involve that the agreement did not occur, and certainly is not conclusive of it; nor does the statement of the first defendant (which I accept occurred) involve that he expected the offer of inspection to be fulfilled. As the plaintiff said in chief on that point: Question:
"Did you at that stage have any reason to query your father?
---No, I always took him for his word".There is another item which I consider was particularly revealing. That was that after the discussion at the hayshed about needling the cows in September 1995, Mrs Shirley Dyke, the second defendant, the next day drove down in the car to where the plaintiff was driving the tractor rotary hoeing the front paddock at Nick's rather than attending to his duties milking, and asked him why he was not coming to milk. Question of Mrs Shirley Dyke in evidence-in-chief:
"What did Graeme say?---That he didn't believe in what was going on and he was doing work anyway, and I said well, at this time of the year it's very important for people to be there to milk because there was a lot of work to be done, and if he didn't come back and milk, that I'd be in touch with Murray Goulburn and have his percentage of the milk cheque stopped".
That evidence is, I consider, both eloquent and revealing of the true relationship between the first two defendants and the plaintiff.
The members of the family (other than the plaintiff) denied that there was any 1986 agreement or variations thereto and that anything had ever been said by the plaintiff about the agreement until the issue of proceedings. I consider the family has closed ranks against the plaintiff. Of the defence witnesses I was impressed only by Andrew Dyke as an accurate and truthful witness, and his evidence was substantially derivative, that is, he was not present for the critical conversations in which the plaintiff took part. I was most unimpressed by the denials of the first, second and third defendants as to the matters deposed by the plaintiff. Further, I accept the evidence of the plaintiff and not that of his sister Jennifer as to the conversations in the lounge room at Nick's on the Queen's Birthday weekend 1994. The plaintiff was a far more impressive witness than were the defendants.
It was submitted by Dr Hanscombe for the defendants that Stewart Dyke declining to join in a claim which would if successful benefit him by providing to him half the family farm was "cogent evidence" of his truthfulness. I disagree. I consider it is cogent evidence that the family has closed ranks.
It was further relied upon by the defence that there were two witnesses called by the defence and whose evidence contradicted that of the plaintiff and who were independent of the parties. One was Mr Cameron Delbridge and the other Mr Reg Harrison. Mr Delbridge was called as a consequence of the plaintiff's evidence. In evidence-in-chief on the question of detriment, the plaintiff said he had been offered a position as a contract milker some two years ago. Mr Heaton asked the plaintiff:
"What sort of remuneration was involved in that proposal?
---What do you mean by remuneration?.
"How much would you have earned?---$70,000 to $75,000 a year."
It was not entirely apparent from that question whether the witness's mind was directed to the actual terms of an offer made, or whether his response was an assessment by him of what he would have earned if he had obtained the position.
The matter was but briefly touched upon in evidence in chief and in cross- examination. In cross-examination the following occurred:
"You have given evidence you have been offered a position as a contract
milker?---A bloke, yes, said that to me.
"Who?---Cameron Delbridge of Yanakie.
"When was that?---Just after he put his rotary shed in down there.
"When was that?---Approximately two years ago, approximately".Cameron Delbridge was called. He was a farmer from Fish Creek. He gave evidence that he did not recall making such an offer and was not in a position of making such an offer. I accept the plaintiff's evidence that there was a discussion with Mr Delbridge about a position. It is not at all necessary to the plaintiff's evidence that the discussion constituted a firm and final offer. Whether the plaintiff took it for more than it was is not necessary to determine. The evidence of Mr Delbridge was elusive and was conspicuously vague about the matters, and does not detract from the evidence of the plaintiff.
Next Mr Reg Harrison was called to rebut evidence of the plaintiff first elicited in cross-examination. At the very conclusion of cross-examination on the plaintiff the following was put:
"When you began to become increasingly distressed that Andrew was back working on the farm, did you go and see Mr Harrison?---Yes I did.
"And did you threaten to close the land down?---No, I didn't. I asked him would he talk to, would he go and talk to my father about the family problem.
"And the 'family problem' meaning how to get rid of Andrew?---No. I asked him – I asked Reg to ask him what was going on, and Reg come back to me and said that my father was prepared to give me a herd of cows and set me up on Nick's farm, and that's what his words was to me sitting on my couch.
"I see. If Your Honour pleases".
Cross-examination thus concluded.
Yet when Mr Harrison was called, his evidence, rather that of a conversation with the plaintiff "threatening to close the land down", was of a comparatively inconsequential conversation he had difficulty recalling.
Mr Harrison, a farmer, of Mirboo (some 5 kms. from the Homestead at Dollar) gave evidence that the plaintiff 3 or 4 years ago asked him if he (Mr Harrison) would see the first defendant to see if the plaintiff could get a share of cows and to mediate between the plaintiff and his father. In cross-examination Mr Harrison denied the conversation (above cited) deposed to by the plaintiff in cross-examination. The following then occurred in cross-examination of Mr Harrison:
"I suggest to you that you went to the Koonwarra sale. You went and saw Mr Dyke in the afternoon on the Monday, and that you went down and you spoke to Graeme at the house on Nick's after milking that evening?---No, I can't recall that. That's a bit long ago for my memory.
"You said as a result of having spoken to Mr Les Dyke that afternoon, you told Graeme, that 'Your father is going to set you up on Nick's on your own with a herd of cows and equipment', and that in time Graeme would get a turnout block?---No, nothing was ever mentioned to me about that.
"Did you tell him you hoped it would be worked out without big problems?---Well, we never really discussed their problems very much, because I said well, you can work your own problems out with your father. I don't like to get involved with that sort of thing and I've never been involved in that sort of thing, and I said you go and talk to your father and work it out for yourselves.
"HIS HONOUR: What problems did you tell him to sort out with his
father?---What's that?
"What problems did you tell him to sort out with his father?
---Well, if he had a problem with his father, talking about the problems
they had with the farm, well, I said I can't help you there, you'll have towork your own problems out.
"MR HEATON: What was the problem with the farm?---I don't know.
"HIS HONOUR: You had said that he asked you to see his father about a share of the cows?---Yes, he asked me to go and see a share about the cows.
"Was that the problem?---What's that?
"Was that the problem?---Well, I think so. I think Graeme wanted a share of the cows, because he'd reared these poddies for so many years. I don't know how many years he reared calves, because I didn't go up there that often.
"Why did you think that was a problem?---What, for him to - - -
"That he wanted you to see his father about a share of the - - -?---I don't
know what the problem was.
"Did that sound like a problem to you?---It didn't really sound like a
problem to me, no.
"Then what is the problem that you have been speaking about?---Well, I
don't know really."You do not know?---No. I heard a lot on the grapevine, what's been going on, but Les has never ever spoken to me about their problems. Graeme hasn't said a lot to me about their problems and I just don't know what's involved really, because I don't know what's happened".
The evidence of Mr Harrison was unpersuasive both as a matter of recall and as a matter of logic.
I turn to matters of law. I have been most assisted by the oral and written submissions of both Mr Heaton, who appeared for the plaintiff, and of Dr Hanscombe, who appeared for the defendants.
In the pleadings the plaintiff's claim for declarations comprehended the Homestead, Greens and Gilliams. However the plaintiff has always said that the first defendant stated that Green's would be left to Andrew (see also para. 11 (b)(ii) of the further amended statement of claim). And the plaintiff in evidence before me stated (truthfully in my view) that he had "never been promised anything about Gilliams' . . . my father never mentioned that I would get any part of Gilliams to me in any way". Accordingly the case proceeded in relation to the Homestead (plus stock, plant and equipment).
The discussion constituted by the 1000 bale hayshed conversation was such as to create enforceable legal obligations. It was not mere personal domestic or family talk. The subject matter comprehended was serious and of financial and occupational significance to the parties to it (the plaintiff and the first defendant). This is not a case, like Jones v. Padavatton (1969) 2 All E.R. 616 where the matter was merely domestic and not appropriate for (or intended for) enforceable legal relations. The hayshed discussion was clearly directed to a matter of financial significance to the parties – to the plaintiff to secure his future, and to the defendant to secure the present – and upon which the parties thereafter acted. There is no legal requirement that the matter be attended by formality.
Next, the agreement although unarticulated and imprecise as to time of fulfilment is sufficiently clear and certain to be enforceable. The imprecision as to time of fulfilment does not negate the existence of the agreement. On the contrary, the flexibility as to fulfilment was accepted by the parties. It was sufficiently certain for the plaintiff to spend the next decade on the farm. It was sufficiently certain for the first defendant to succeed in having the plaintiff spend the next decade on the farm. It is sufficiently certain for the court to enforce. See generally, Butler v. Craine (1986) V.R. 274 at 281 per Marks J. (while noting that insofar as his Honour rested upon the finding of the majority in the N.S.W. Court of Appeal in Baumgartner v. Baumgartner, that foundation is in part eroded by the decision of the High Court in that case: (1987) 164 C.L.R. 137: see the judgment of the majority therein particularly at 146 and 150).
Likewise common intention is clearly established: see Rasmussen v. Rasmussen (1993) V.R. 613.
The plaintiff acted to his detriment by staying on for more than a decade essentially as a farm labourer on the Homestead and only acquiring land contiguous to it. He did not develop a farm of his own, which otherwise he would have. This was a real and substantial detriment which sounds in capital and income consequences. On a dairy farm, it is as real and substantial a contribution as any mere financial contribution: more than domestic living as in Baumgartner v. Baumgartner.
Fraud in its most egregious form is not necessary as a separate element in a common intention constructive trust: see Higgins v. Wingfield (1987) V.R. 689 at 696 per McGarvie J. (in whose judgment the learned presiding Judge agreed) passing upon Hohol v. Hohol (1981) V.R. 221 at 225 per O'Bryan J.
I consider that it is appropriate, although I formally do not presently do so for reasons to which I shall come, that a declaration issue that the first defendant holds the property on trust for himself and the plaintiff as tenants in common in equal shares, being the Homestead property; and further, that a declaration issue that the first and second defendants hold the stock, plant and equipment on trust for themselves for half and the plaintiff for half as tenants in common in equal shares.
In the circumstances, I consider the conduct of the defendants falls short of that founding the remedies articulated in The Commonwealth v. Verwayen (1990) 170 CLR 394 and The Commonwealth of Australia v. Clark (1994) 2 VR 333, but that the antecedent matters of agreement and common intention are affirmatively made out.
By reason of the primary findings that I have made, the counterclaim of the first two defendants fails wholly. The consequence of the agreement and representations was that the plaintiff sought to vindicate his rights by the issuance of a caveat which he was entitled to do, and the circumstance that some additional costs, a little under $10,000, were thus caused to the first and second defendants in raising the moneys referred to in the counterclaim, is a consequence of the plaintiff seeking lawfully to secure that to which he was entitled. Accordingly, the counterclaim of the first two defendants wholly fails.
I am, however, persuaded, that mesne profits from 17 April 1997 of the limited amount sought by the third defendant is justified, given the dislocation of the parties once proceedings commenced on 7 April 1997 and the circumstance that the plaintiff is residing where he is. The plaintiff and his wife (and later, the two children) have lived on Nick's since March 1994. They have maintained it and its surrounds in good order. It is impracticable for Stewart and his wife (who reside in Leongatha) to live in the house on Nicks'. That is a limited amount of money, but may have some consequences, upon which I will give counsel the opportunity of submissions, as to costs.
The plaintiff and the third defendant in relation to Bruce's and Nick's agree to the sale by public auction with the right of each of them to bid.
In the event, the counterclaim of the first and second defendants fails. The counterclaim of the third defendant as to mesne profits succeeds. The claim of the plaintiff on the primary matters succeeds with, as a consequence, the declarations which are sought by the plaintiff being justified to be made.
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