Edgar v Byrnes - [2006] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EDGAR v BYRNES
[2006] SADC 98
Judgment of His Honour Judge Burley
22 November 2006
EVIDENCE
Plaintiff unable to give evidence because of illness - whether affidavit of plaintiff should be admitted.
Evidence Act s45B, referred to.

EQUITY
Plaintiff alleged oral agreement to purchase real property jointly - absence of writing - whether enforceable - whether past performance.
Law of Property Act s 26, s26(1), s26(2), referred to.
Van Schaik Organic Soils and Bark Supplies Pty Ltd v Woakwine Industries Pty Ltd [2001] SASC 297; Maddison v Alderson [1883] LR 8 App Cas 467, considered.

EDGAR v BYRNES
[2006] SADC 98

In this matter the plaintiff claims two things : first a declaration that certain land is held by the defendant in trust for herself and the plaintiff as tenants in common; and second, a monetary judgment in the sum of $1,375.
At the trial, Mr Britton appeared for the plaintiff and Mr Gillam for the defendant.
The claim for the declaration is based on an assertion that the parties agreed jointly to purchase the strata titled unit No 11 at 33 Beach Road Brighton South Australia (“the unit”). The claim for the money sum is based on the assertion that the plaintiff and the defendant agreed to invest jointly in the share market and split any profits equally.
The defendant’s case is that there was never any agreement to purchase the property jointly. She contended that she purchased the property in her own right. As to the agreement to invest in the share market jointly, the defendant’s case is that there was such an agreement but it was never put into effect. She contended that it was a term of the agreement that the plaintiff would download share investment software onto her computer. It is common ground that the relevant software was never successfully downloaded onto the defendant’s computer. The plaintiff says that the computer equipment acquired by the defendant for that purpose was not compatible with the software. In her defence, the defendant asserted that the program never became operational or usable by her at any stage.
It is also common ground that prior to the attempted installation of the software, the plaintiff advanced $1,000 which was placed into a joint account and was to be used for the purposes of acquiring shares. Company shares were acquired with that sum. They were later sold for the sum of $3,750, thereby yielding a net profit of $2,750. The plaintiff claims to be entitled to half of this sum. It is common ground that the defendant received the gross sale proceeds in respect of the shares and has not accounted to the plaintiff in respect of the profit.
Before turning to the evidence adduced by the parties, I should mention the pleadings. The Statement of Claim is couched in different terms from the way in which I characterised the plaintiff’s claim for declaratory relief at the commencement of these reasons. That description is different from both the Statement of Claim as originally pleaded and the amendments made to the Statement of Claim by the plaintiff during the course of Mr Britton’s final address. However, it is clear from what he said during the course of his closing address that the plaintiff adopted my description of the nature of the claim when I stated to Mr Gillam, during his final submissions, my understanding of the plaintiff’s case. I said (at T358/28) :
HIS HONOUR: Let me tell you this: If the parties had reduced their agreement to writing and they said “on the one part, this is the agreement between the two of us for the acquisition of the relevant property. The property will be purchased in the name of the defendant, but the defendant acknowledges that she is purchasing on behalf of herself and the plaintiff, and that she told us that upon registration as the legal owner of the property, she will hold the property on trust for herself and the plaintiff”, that is an actual trust and that is what is being put forward as an oral trust. The only problem is that it’s not in writing as required by s.26 and the plaintiff has to then fall back upon part performance to enforce it. That is how I analyse it [the plaintiff’s claim] ……
Later on in the transcript, Mr Britton is recorded as saying (at T349/38) :
You have succinctly summarised the position in the last five minutes of my friend’s address. The way to think about it is if it had been reduced to writing, as I say, the parties intended, as at 21 December 2001 and continuing, that would be the position.
The plaintiff’s case was that by December 2001 he had for some time been in occupation of the unit. It is common ground that when he commenced occupation of those premises he did so on an informal tenancy which had not been reduced to writing. The owner of the premises was a Ms Lyndal Tayler. Although it is not clear, it seems that the plaintiff paid rent of $160 per week. It was paid in cash to Mr Paul Massey, who was a friend of the defendant and the son of Ms Tayler’s partner.
In addition to discussing with the defendant a proposal for the investment of shares, the plaintiff also raised with the defendant the possibility of buying the unit jointly. The plaintiff said that he and the defendant attended a meeting at the defendant’s bank with a Mr Langley in December 2001 during which a loan application was discussed in relation to the proposed purchase of Unit 11. He said that a further meeting was contemplated, probably in January of 2002. He said that he understood the meeting to have been cancelled. Thereafter he heard nothing further from the plaintiff about the rent. He was later told that the defendant had purchased the property and settlement in respect of that purchase was to take place. After this, the defendant sent to the plaintiff by SMS message a bank account number which he learned, on further enquiry, was in respect of the defendant’s bank account into which he was to pay weekly payments of $150.
The plaintiff continued to reside in the unit until about September 2004 when he voluntarily left the premises. Prior to his voluntary surrender of possession of the premises, he had received correspondence from Ms Kohlhagen, a letting agent appointed by the defendant, demanding respectively, an inspection of the property, payment of arrears of rent and possession. Ms Kohlhagen gave uncontroversial evidence about her correspondence with the plaintiff.
I turn now to the evidence adduced by the defendant. The defendant was unable to give evidence as a result of illness. She called Mr Langley, the bank officer who dealt with the defendant’s application for finance and Ms Kohlhagen, a letting agent.
Because the defendant was unable to give evidence Mr Gillam applied, pursuant to s.45B of the Evidence Act, for an order that an affidavit previously sworn by the defendant in these proceedings and other documents, be received into evidence. A voir dire hearing was held in relation to that application. I received into evidence two medical reports : first, the report the report of Dr S Hooper from the brain injury rehabilitation service at the Hampstead Rehabilitation Centre. The report is dated 24 January 2006 and includes within it information obtained by Dr Hooper from a number of medical sources. It discloses that on the 25 May 2005 the plaintiff suffered a stroke when travelling to New South Wales. Her condition was serious. She was admitted to the Liverpool Hospital and remained in intensive care for a prolonged period. Her condition was such that she eventually agreed to orders being made by the Guardianship Board for the appointment of guardians to manage her financial affairs.
The second report is from Dr Helen Tingay, a psychiatrist. Dr Tingay has seen the defendant from time to time since 1991. In February 2005 the defendant was referred again to Dr Tingay by the defendant’s general practitioner. She saw the defendant for depression. In her report of 10 October 2006 she described the defendant as suffering from major depression with melancholia and psychotic features which was barely stabilised. In addition she suffered from vascular dementia, secondary to the subarachnoid haemorrhage experienced by the defendant in May 2005. This condition gave rise to multiple cognitive defects in relation to memory, language and ability to carry out motor activities. The deficits also included failure to recognise or identify objects and disturbances “in executive functioning”. Dr Tingay was of the opinion that the defendant was unfit to give oral evidence because of the conditions just described. At the hearing of the application for admission of the affidavit, I had no hesitation in accepting Dr Tingay’s opinions both as to the defendant’s condition and her inability to give evidence. I ordered that the affidavit and other documents would be admitted. These are my reasons for so ruling.
I shall deal with the affidavit first. Section 45B enables the affidavit and its exhibits to be tendered if certain conditions are satisfied. Firstly, the court must be satisfied that the person by whom the document was prepared could have deposed of her own knowledge to the statements in the document. This requirement is satisfied because the document sought to be tendered is an affidavit.
Next, because of sub.para 3(a) of the section, I had to be satisfied that the defendant was not in a position to give evidence. By reason of the medical report of Dr Tingay, I was satisfied that the defendant could not be called to give evidence.
The next matter to be considered was whether or not the evidentiary weight of the document was so slight as to be outweighed by the prejudice that might result to the plaintiff by its admission. The affidavit is a relatively detailed document to which is exhibited eight documents and in it the plaintiff deposes to a number of matters material to the plaintiff’s claim. In my opinion it could not be said that the evidentiary weight of the document was slight.
No other basis for the rejection of the document was put to me. Because I was satisfied as to the various requirements of the section I permitted the affidavit and its exhibits to be tendered as part of the defendant’s case.
The additional documents which were admitted consisted of four reminder notices issued by the Bank of South Australia in respect of the mortgage taken out by the defendant when she purchased the property. They are dated respectively the 15 November 2003, 14 February 2004, 15 March 2004 and 15 April 2004. There was no objection by the plaintiff to the admission of the documents themselves. However, on each of the notices there was some handwriting which appeared to be notes of the telephone conversation that the defendant had with the plaintiff on four separate occasions relating to what she noted as arrears of “rent”. The defendant sought to have the content of the handwritten note admitted as evidence of the truth of the statements made in the note. I formed the same conclusions in relation to the reminder notices as I did in relation to the reception of the affidavit. The four reminder notices, including the handwritten notes relating to telephone conversations between the plaintiff and the defendant, were admitted as a bundle and marked D14.
I propose to deal next with the plaintiff’s claim for $1,375. The plaintiff met the defendant in 1999. He became involved in the selling of a particular type of computer software. Initially he travelled around Australia selling this software. At one stage he was asked to look after the Brisbane operations of the company which owned the software. He was there from about April 2000 until the end of that year. He then returned to Adelaide when he met a Mr Paul Massey. It is not clear, but it appears that Mr Massey altered the software and, with a number of other people, including the plaintiff, intended to market the new software program. It was a program which was designed to assist with investment in the share market.
In January 2001 the plaintiff returned to Adelaide to live. By that time a company called Stag Pty Ltd had been incorporated. It was the vehicle used to market the new software program referred to. The plaintiff became a director/shareholder of the company. He was also employed by the company to demonstrate and sell the revamped version of the software.
When he returned to Adelaide he lived at the unit. As I have said, this was arranged through Paul Massey. The rent paid was $160 per week (T.197).
In about May 2001, the plaintiff re-established contact with the defendant. He telephoned her and then went to visit her at her home. In due course he told her about the improved computer program and that he was involved in selling it. He gave her a demonstration of the software on his laptop computer. The computer that the defendant then had was incompatible with the software. The plaintiff and the defendant discussed the software. The defendant told him that she could see the benefit of making an income using the software.
The plaintiff gave evidence in relation to the opening of a bank account with the defendant’s money. It is not clear how this arose, but it was common ground that such an account was set up and that the funds were used to purchase shares. The account was in the joint names of the plaintiff and the defendant. A joint decision was made to buy stock in a company called Micro Medical Services. The shares were acquired. They were subsequently sold for the sum of $3,750. These matters are not in dispute.
The plaintiff and the defendant both say that the computer software was never successfully downloaded onto the defendant’s computer equipment. In her letter dated 14 September 2004 (Exhibit P13), the defendant has set out at paragraph 2 what she says was the arrangement relating to the investment of moneys and the use of the computer software. I accept her evidence that the agreement to invest jointly in the share market was dependent upon the successful downloading of the relevant computer program onto her computer equipment. This never occurred. The plaintiff and the defendant gave differing reasons as to why the computer software was not able to be used. Whether the reason was that the defendant’s computer was incompatible with the software or whether it was because the plaintiff was unable successfully to download the program onto the defendant’s computer (and thereafter failed to instruct her in the use of the program), the fact is that the defendant was not able to use her computer to access the software. The bargain struck between them was unable to be implemented. In my opinion, the legal result of that is that the plaintiff never became entitled to a share in profits in respect of an investment which was undertaken in anticipation of the defendant being able to have access to the software on her own computer. Consequently this aspect of the plaintiff’s claim must be dismissed.
I turn now to the other evidence adduced by the parties relating to the plaintiff’s claim for declaratory relief. First, the plaintiff: I found him to be an unsatisfactory witness. He did not appear to be able to distinguish between factual evidence based on actual recollection, reconstruction of events and surmise. I do not know whether he was a deliberately untruthful witness, but he displayed a readiness to reconstruct events in a manner which he perceived to be in his own interests. However, some aspects of the plaintiff’s evidence are uncontroversial. The following narration sets out my findings in relation to such evidence.
The plaintiff is aged 48 and his current occupation is that of a Real Estate Agent. He was born in Adelaide. Having completed high school he entered the SA Police Force as a cadet in about 1975. After two years of training he decided not to pursue a career as a police officer. Since then he has been involved in advertising and marketing. His predominant occupation has been that of a media planner and buyer. He spent approximately nine years in New Zealand working in that capacity.
In November of 1989 he came back to Adelaide. He later obtained a job in Melbourne working for the Fairfax Group selling newspaper space for advertising. From 1993 he lived in Sydney for about six years where he eventually set up his own business as a media consultancy firm buying newspaper advertising space. His partner became seriously ill and they moved to Queensland. The plaintiff was able to continue his business because most of it was done by the telephone or email.
In December 1998 he returned to Adelaide. He undertook a travel course at TAFE. Part of the course involved work experience with a travel agent. He first became aware of the defendant when he saw advertisements placed in a newspaper for a travel agency. He made contact with the defendant and requested the opportunity to undertake his work placement with her. She agreed to this. This took place in about August of 1999.
In about August 2001 the plaintiff attended an investment seminar at the Novotel complex in the Barossa Valley. In his evidence he said that there were discussions between him and the defendant on the subject of jointly investing in property, including the setting up of a trust company to buy property. At that stage he was still living at the unit and had some idea that the unit might be put up for sale. He did not mention this to the defendant at the seminar.
When he returned to Adelaide from the seminar, the plaintiff spoke to persons he referred to as Jim and Lyn and asked them whether or not the unit would be put on the market. Jim was Mr Jim Massey, the father of Paul Massey. Lyn was Ms Lyndal Tayler, Mr Jim Massey’s partner. The plaintiff said that when he met with Mr Jim Massey and Ms Tayler, he was told that they wanted somewhere between $90,000-$95,000 for the unit, fully furnished, and that they would consider leaving $20,000 on vendor finance for a period of 12 months.
The plaintiff said that he then told the defendant of his discussions with Mr Jim Massey and Ms Tayler. He said that she then got angry with him because he had started negotiations without involving her or telling her that he would do so. As a result, he formed the view that it might be better not to get involved in such an investment with the defendant (T.62/2). It is clear that at that point no agreement had been reached between the plaintiff and the defendant.
The plaintiff did not have any further contact with the defendant until later in 2001. He said that the next time that he saw her was at the car park of the Elephant & Castle Hotel in the City. He said that he told her that the unit was still available and asked her if she would she would still be interested in resurrecting what they talked about a couple of months previously. He said that she replied affirmatively.
It is at this point that the plaintiff’s evidence becomes both controversial (in the sense that it is at odds with the defendant’s evidence) and difficult to follow (T.64 et seq). He was asked about the conversations that he had with the defendant, the topic of joint purchase having again been raised. Instead of recounting conversations, he gave evidence of what, presumably, he understood to be the agreement between them. I am not able to find on the basis of such evidence that any agreement had been entered into. At best there was an agreement on the part of the defendant to look into the matter further.
After this meeting at the hotel car park, the defendant said that he contacted Mr Jim Massey and Lyn Tayler. He said that they told him that they would accept a purchase price of $93,500. He subsequently contacted the defendant and informed her of that price. He was asked (T.65/13) :
QWhat did she say.
A“Great”.

The plaintiff said the defendant later telephoned him and advised of an appointment with the bank. He also said that the defendant had been to the unit on one occasion prior to this time.
In relation to the appointment with the bank manager he said (at T.66/1) :
“She left it that she would contact her bank and that the two of us would be involved and we’d go together.”
The plaintiff recalled the meeting at the bank which occurred on 21 December 2001. He said that the bank officer they met on that occasion was a Mr Langley. He said that Mr Langley was told that the plaintiff and the defendant would be buying the property jointly, that the plaintiff would be paying the mortgage and that the defendant “would be putting up the equity out of her house to pay for it” (T66/22). The plaintiff understood that the defendant would borrow the whole of the purchase money.
The plaintiff then said that there was a “broad discussion because there was never any misunderstanding that Marylou [the defendant] was in fact going to put up the equity out of her house and in fact I had the capacity to repay it because he [Mr Langley] knew she did not, he knew her circumstances”.
This is an example of the plaintiff giving inadmissible evidence consisting of a reconstruction of events to suit his own purposes. As such it cannot be treated as credible and reliable evidence.
The plaintiff said (T68/38 et seq) that his financial position was discussed at the meeting with Mr Langley. Mr Langley, whose evidence I accept, did not recall such information being obtained. I consider that had that information been obtained it would have been noted by Mr Langley. No such note was produced or referred to. In those circumstances I am not prepared to accept the plaintiff’s evidence that he gave such information to Mr Langley on that occasion.
The plaintiff was asked (T.69/9 et seq) about what the defendant told Mr Langley about her financial position. It is appropriate to set out the relevant passage :
QDid Ms Byrnes tell the man from the bank about her financial position
AI think he already knew.
QWhy do you think he already knew
AHIS HONOUR: No, you don’t ask him that question. The first question was the correct one, and his answer was not responsive to it. So then ask for a responsive answer to that question.
HIS HONOUR:
Q      What did the bank manager say, if you can remember?
AThe bank manager’s only concern –
QI don’t want to know what you understood was his concern; I want to know what you recall he said. This is very important.
AWhat he said was: “How is the loan going to be repaid.
QYes; that’s good, anything else you can recall him saying
ANot immediately off the top of my head that was –
XN
Q      Did he actually ask how the loan was going to be repaid.
AYes.
QWhat did you say or what did Ms Byrnes say
AMy recollection is that it was broadly explained to him how the whole thing was going to be put together.
QWhat do you mean by that.
ALike in terms of our ownership structure and I certainly have a recollection of talking about the trust company thing. We talked about Marylou having a business adviser, as to how that would be set up and how it would all be put together. At this point in time I think time was really becoming of essence because it was Christmas time and that was something discussed a lot; all this was to happen fairly fast, it was Christmas, they wanted a settlement between the end of January and the beginning of February, and this all had to happened (sic) very fast, so it became “you’re going to pay the mortgage; I need to see some financials from me –
HIS HONOUR: [to Mr Britton]
I will give you one final warning. I anticipate that it will be put to me quite a different version of this, either by Mr Langley or by the defendant, I’m not sure which. That’s the possibilities I’m overting (sic) to.
Unless you get this material out in admissible form, I’m telling you that I can place very little reliance upon it. You understand that as well as I do. It’s your job to make sure that you get the information in admissible form from the witness.
XN
QWhat I’m asking you, Mr Edgar, is to tell us precisely, if you can, as best you can, what Mr Langley said, what you said, and what Ms Byrnes said. Let’s start with Mr Langley; do you recall what he said in that conversation.
AHe asked Marylou a few questions about what we were doing and why we were doing it, and normal real estate type questions.
QWhat does that mean.
AJust, “Have you done proper evaluations”. It was obvious to me that they were friends.
QJust stop there for a moment.
AOkay.
QMr Langley has asked her whether she had done a proper evaluation to see if the price was right.
ACertainly he did – I don’t know if it was –
QDid he ask her.
AI truly can’t remember if that was an exact question.
QWas there something said by him about is it a reasonable price.
AYes.
QWhat did Ms Byrnes say, if anything.
AShe believes so.
QIs that what she said.
AAlong those lines, it was very –
QDid you say anything
ANo; I was sitting going with the flow I suppose. I didn’t have any misunderstanding about being there. I was asked to be there and presumably in terms of the negotiations that she was going through with the bank – and with what her and I had discussed in terms of me paying off the mortgage, my role in it was quite minimal. That was always my understanding. So outside of being asked by the bank manager – and he didn’t actually even care whether it was Marylou or –“.
I intervened at this stage because the plaintiff was again about to embark upon inadmissible material.
The above passage is representative of the type of evidence given by the plaintiff. It must be viewed in the context that Mr Britton, in his final address, said that the plaintiff’s case was that there was an agreement reached between the plaintiff and the defendant prior to the meeting with the bank manager on 21 December 2001 to the effect that the plaintiff and the defendant would purchase the unit jointly. The plaintiff’s version of that meeting is quite different from the evidence given by Mr Langley. I am sure that if the plaintiff and the defendant had made the statements referred to by the plaintiff during the course of the evidence just set out, Mr Langley would have made some note to this effect. There was no evidence of such a note. In the absence of such corroboration from Mr Langley, I am not prepared to accept the plaintiff’s evidence (as set out above) as reliable.
The plaintiff said that in the course of the meeting at the bank, Mr Langley said that there would be no problems with the finance application. This seems to be inconsistent with the evidence given by Mr Langley that it was not until about 24 January 2002 that he took the details which enabled the loan application to be completed. The loan application itself was not signed until 11 February. I think this is again an example of the plaintiff reconstructing events to suit his own purposes.
The plaintiff said that he’d understood that there would be another meeting with the bank manager, but as far as he was aware that did not take place. In any event, he did not attend the meeting. It is probably fair to assume that he is referring to a meeting on 24 January 2002 referred to by Mr Langley. Mr Langley said that only the defendant attended on that meeting. In some manner, the plaintiff was given to understand that the meeting towards the end of January was cancelled. He thereafter attempted to contact the defendant by telephone but without success.
The plaintiff next saw the defendant at New Year’s Eve celebrations on 31 December 2001. He attended a party at Goolwa given by a Ms Jude, a friend of the defendant. The plaintiff said that he had a discussion with the defendant at the New Year’s Eve party. When asked what he discussed, he said (T.75/14) :
AJust how was it all going and was there going to be a settlement date and when we were going to get together to talk about setting up the trust.
QWhat did she say.
AShe would get back to me in the New Year.
In late January 2002, as a result of a discussion he had with Mr Jim Massey, the plaintiff ascertained that a contract for the purchase of the property had been entered into with the defendant and that settlement was to take place at some unspecified time.
Thereafter the plaintiff renewed (without success) his attempts to contact the defendant by telephone. He also visited her house at Alberton but she was not there.
The next contact the plaintiff had with the defendant consisted of a receipt by him of an SMS message on his mobile telephone. This was on about 26 February 2002. The message referred to a bank account number. The plaintiff said that he responded with an SMS message of his own asking for an explanation. He received the SMS response from the defendant that it was the account in respect of which the mortgage money was to be paid into. The plaintiff said that he complied with this request and deposited $200 into the account on 26 February. This is consistent with the bank statement (Exhibit P8). At this point he said (T.83/19) :
AWe had agreed that it would be $150 a week, which was above the recommendation given by one of the agents back in December, that was – that we had agreed on $150, that’s what it would do to cover the mortgage.
QDid you say to Ms Byrnes that what you understood that payment of the $150 represented.
AEverything.
Later he said (T.84/15) :
A$150 a week or the equivalent of $600 a month, there, give or take.
QHad you discussed that at some other time with Ms Byrnes.
AYes.
QWhen did you discuss that.
AWe discussed that when I – when the letter came in about roughly what rent there would be –
QWhen you say “letter”.
AWhen we decided or when I asked what the rent, you know, from the other agents was, a property in the area would rent for at that time. Knowing that it would possibly be, you know, on average about $120 or $30 [sic] a week we knew, we sat down, we worked out the cost. I went through all of those with her, through the strata costs and everything that were associated, because it was pretty cheap. It wasn’t expensive. I think they were $147 a quarter, or something. I can’t remember exactly, but we sat down and worked it out that, in that first twelve months, the loan repayment was approximately $525 per calendar month, I think it was. So there needed to be roughly $600 a week in the account on the 15^th of every month. That’s what I knew. That’s what I knew.
QWhen you say “we sat down”. Who is “we”.
AMarylou and I. To be exact I can’t remember exactly, I just remember.
It is on passages such as these that the plaintiff relies to establish the relevant agreement for the joint purchase of the property. The conversation purportedly relates to the plaintiff’s obligations under such an agreement. The evidence is unspecific as to the time and date of the alleged conversation and it fails to set out what each of the parties said. The final remark was that he did not have an exact recollection.
Although I am willing to accept that there were discussions between the parties about these sorts of matters, I do not think that such evidence is sufficient to establish on the balance of probabilities that an agreement to effect contended for by the plaintiff was reached between the parties. Apart from anything else, where was the benefit to the defendant in such a bargain? Prior to the purchase by her of the unit, he was in occupation paying $160 per week rent. After the purchase of the property by the defendant he remained in occupation and paid a weekly amount of $150. Clearly this money was used by the defendant to repay the mortgage, but that in itself does not constitute an agreement between them that, if he repaid the mortgage, he would be entitled to half of the property. It is equally clear that the defendant was able to purchase the property entirely out of her own financial resources. There was a prospective rental income taken into account by the bank and she was obviously able to satisfy the bank that she had other income sources which would enable her meet the bank’s requirements in respect of the loan. When such matters were put to him (T.197 et seq), the plaintiff said that the defendant’s actions were “gratuitous”.
There are other examples in the evidence of the plaintiff recounting the effect of alleged conversations between himself and the defendant, including a repeat of what was discussed at the New Year’s Eve party at Goolwa. These suffer from the same defects referred to above.
During the course of such evidence he referred to the setting up of a trust. He said (T.94/23) :
AThat would have been to find out where there was the progress of the purchaser, and the discussion that we had had was that she had a business associate or an accountant or somebody who was actually going to assist in us in actually setting up the trust fund, with her and I as beneficiaries. My understanding was, that that property was going to be bought and whatever the name of that trust was; I even had notes of what we were going to call it. That was my understanding.
That answer was given in relation to an entry in his diary for 18 January 2002. The introductory words are : “That would have been”. The answer is at best a reconstruction on the part of the plaintiff. In any event, the reference to the accountant or business associate suggests to me that the details of the prospective trust were still to be sorted out. If that were the case, there could be no concluded agreement between the parties relating to how the property was to be held in trust as at 18^th January 2002.
During the course of his evidence, the plaintiff referred to a calculation that he had done in relation to payments made by him into the defendant’s account. The calculation showed that he’d paid nearly $16,000 over the period from February 2002 to September 2004 when he gave up possession of the property. The calculation was made in respect of the bank statements (Exhibit P8), except that one of the pages from the copy bank statements in the possession of the plaintiff’s solicitors was missing. This made a difference to the total of about $900. Consequently in round figures it appears on the plaintiff’s calculation that he paid over the relevant period a little under $17,000. That figure would cover weekly payments of $150 for 113 weeks. The actual period of occupation from the end of February 2002 to the end of September 2004 represents 134 weeks. Consequently, the minimum shortfall on the part of the plaintiff in relation to the requirement to make weekly payments of $150 amounts to approximately 20 weeks or $3,000. This has a bearing upon whether or not, even if the plaintiff were to establish the existence of an agreement giving rise to the actual trust contended for, of the plaintiff could enforce that trust. I shall return to that aspect of the matter later in these reasons.
For the remainder of the 2002 there was no contact between the plaintiff and the defendant. Nor could the plaintiff recall having had contact with her for most of the first half of the 2003 calendar year. In what I take to be June of that year, there was contact between the two of them initiated by the defendant who wanted to carry out some improvements to the unit. This apparently consisted of some painting work and the laying of new carpet. The contact was made just prior to 30 June. Apparently, the defendant wanted to incur the expense within that financial year so that she could make a claim for the expense in her tax return.
During the course of the evidence on this topic, the plaintiff made reference to the fact that the defendant described the plaintiff as her tenant in the presence of one of the workmen at the unit (T.118-16). He said that this was the first time the defendant had made such a comment in his presence.
The plaintiff could not remember any further contact with the defendant in the second half of the 2003 calendar year. He said that although he was concerned that the trust documentation had not been put into place, he did not follow it up with the defendant. When asked why he did not follow that up with the defendant he said (T.125-7) :
AIt occurred to me that things had reached the point where Mary Lou had obviously decided after all the references, the references to tenant in particular, the selling of the shares, the lack of communication I had basically given up pretty much in the idea that she had intended to go ahead with what she said she was going to do.
In the first half of 2004, the plaintiff was to undergo an operation. He contacted the defendant to inform her that he would be out of employment for an extended period and that he was going to apply for sickness benefits. He said that he would be out of action for between three and six months. He said that he posted to her a form which would enable him to claim rent assistance from Centrelink. This is the letter which is exhibited to the affidavit of the defendant (MLB8). Taken in isolation, this letter clearly indicates that the plaintiff regarded the payments of $150 per week as rent. This is to be contrasted with his contention in the letter to the Letting Agent previously referred to that he had a joint interest in the property. It seems to me that, at the very least, the contradictory evidence relating to whether or not he was a tenant or a joint owner indicates that the defendant was uncertain about his position. Although I do not think that the plaintiff’s evidence relating to MLB8 constitutes an unqualified admission that he regarded himself as a tenant rather than as a joint owner, it nevertheless adds to my concern about the reliability of his evidence.
The plaintiff eventually gave up possession of the property to the defendant. I shall refer later to correspondence between the plaintiff and the defendant and between a letting agent engaged by the defendant and the plaintiff. That correspondence sets out the circumstances leading up to the plaintiff leaving the unit. It is common ground that he has not made payments of $150 per week since leaving the unit. The non-payment of the $150 and the leaving of the unit is an indication that, contrary to his protest in the correspondence, he was a tenant of the property rather than a joint owner. Again, it is something which is not determinative of the question, but the giving up of possession and the non-payment of the weekly payments are factors to be taken into account in deciding whether there existed a tenancy or a trust conferring upon the plaintiff a joint interest.
I mention for the sake of completeness that the plaintiff caused a caveat to be lodged in respect of the unit. A copy of that was tendered in evidence (exhibit D20). It is dated 5 October 2004. The relevant part reads :
The caveator claiming to be beneficially entitled to an estate in fee simple in an at present indefinable share in the land above described due to the caveator having made financial contribution to the said land and the improvements thereon.
This caveat has been replaced by another caveat claiming an interest more in line with the type of interest pursued in these proceedings.
Another witness who gave evidence was Mr Langley. He was called by the defendant. I accept Mr Langley as a truthful witness, but he had no detailed independent recollection of the loan application made by the plaintiff. It appeared to me that he was almost entirely reliant upon the content of his file when he gave evidence as to what occurred in relation to the defendant’s loan application. This is not surprising given that the first meeting relating to the defendant’s loan application took place in December 2001. Nevertheless, it is clear that when the plaintiff and the defendant met with Mr Langley at that time, the application for finance was processed as the application of the defendant solely. Mr Langley gave no evidence that supported the plaintiff’s case that the property was to be purchased jointly, but equally, he gave no evidence that ruled out a private arrangement between the plaintiff and the defendant that the property would (in equity) be owned jointly.

It appears from his evidence that, in addition to the meeting of December 2001, there was a meeting between Mr Langley and the defendant at which the plaintiff was not present, on 24 January 2002. It is probable that on that occasion Mr Langley took the details from the defendant necessary to fill out the loan application form. It also appears that after the application form was printed out a copy was forwarded to the defendant who in turn signed the document on about 13 February 2002 and returned it to Mr Langley.
The loan application form is Exhibit D17. At the end of the document there is a declaration (over the signature of the defendant) which is to the effect that the applicant will not enter into an agreement as trustee. It appears that if the defendant had intended to use a trust as the vehicle for purchasing a property, a copy of the trust deed would have to have been provided to the bank. However, Mr Langley said that, had there been an arrangement between the defendant and the plaintiff that the property would be purchased in her name, but that she would hold the property in trust for both of them, no additional documentation would have been needed. I therefore do not think that the declaration relating to a trust arrangement at the end of the loan application form assists in relation to the question of whether or not there was an agreement as alleged by the plaintiff in existence at the time that the property was purchased. In other words, I do not consider that the declaration signed by the defendant that no trust relationship was involved is determinative of the question of whether or not there was in existence at the time of the signing of the contract for purchase, an agreement between the plaintiff and the defendant that the defendant would hold the property on trust for herself and the plaintiff in equal shares.
When questioned about a document on the bank file relating to the rental value of the property to be purchased, Mr Langley identified the document as having been forwarded to him to provide an estimate of the rental value of the units within the strata corporation of which the unit was a part. The letter did not relate specifically to Unit 11 which was the one purchased by the defendant. It dealt with Unit 14, but it was taken into account by Mr Langley as an indication of the rental value that might apply to Unit 11.
The plaintiff gave evidence that, immediately after the meeting in December 2001, he made enquiries of other tenants within the strata corporation and of at least one local agent as to the rental value of the units and that he forwarded that information to Mr Langley. I find that the letter that was included within the bank file from an agent called Hoffmans, was forwarded by facsimile transmission to Mr Langley by the plaintiff. I infer that the defendant wished the bank to take into account rental income from the unit as part of her income to be used in payment of the mortgage instalments. This suggests to me that the defendant was contemplating using payments of rent to reduce the mortgage debt. It is to be noted that it is common ground that after the defendant purchased the unit, an account was established by her into which the plaintiff paid over a period of a number of years varying amounts but mainly amounts of $150 paid on a weekly basis. It is the defendant’s case that these payments constituted rent on the part of the defendant. This is to be contrasted with the plaintiff’s contention that the payments of $150 and any other payments made into the relevant account were made in reduction of the mortgage debt as part of the agreement for the joint acquisition of the property.
Relevant correspondence was tendered. It starts with a letter from Ms Kohlhagen dated 16 September 2004 2004 (Exhibit P4). In the letter, Ms Kohlhagen appointed a time for inspection of the premises and sought an opportunity to view all rental payment receipts “to resolve the apparent outstanding rent”. The plaintiff replied to this letter by letter dated 2 September 2004 (Exhibit P10). He said :
This letter is to formally advise you that I do not have a Tenancy Agreement with Ms Marylou Byrnes. I do have a Joint Ownership Agreement with Ms Byrnes. This agreement has never been ratified despite several requests by me for this to happen. She has consistently avoided this issue and now it seems the matter will have to be resolved legally.
The details of this agreement are not really your business, however just so you know, I entered into an agreement with Ms Byrnes back in December 2001. I agreed to service the mortgage and in fact this entire issue was discussed at a meeting with her bankers. She agreed to provide the security. Ms Byrnes has consistently avoided this issue and now that she has chosen this path, I’ve taken the necessary steps to review the legal options open to me regarding the situation.
The plaintiff also wrote to the defendant by letter 2 September 2004 (Exhibit P11). That letter is as follows :
Dear Marylou
What a shame that things have come to this. However after several attempts by me to find out when you intended to ratify the agreement we made back in late December 2001 it is now obvious to me after the letter I received from Margaret Kohlhagen that you have no intention what so ever of honouring the agreement regarding 11/33 Beach Road Brighton.
It should not come as a surprise to me as you have no deceived me 3 times –
1)Lumping me with a debt to a complete stranger regarding the property investment seminar we attended. You will never know how embarrassed I was that day … in fact you told me about it via a note – you did not even verbalise it! I would never have attended that seminar had I known you were going to do that!
2)We entered into and you even opened a joint bank account in OUR names to trade shares based on the tips I gave you. My understanding was always that we would split any profits made or reinvest profits back into the market. You sold the shares we bought (VENTRACOR) & with no consultation with me and you pocketed approximately $2,750-00 profit from MY recommendation! I believe your response when I questioned you about it was – ‘you have to be kiddin’ when I requested my half. I seem to recall you had a pressing arrangement with your guttering!
3)And now the unit in Brighton – you know exactly what was agreed to – not once but twice I recall! Had you not been interested I would have found someone else who was on the basis of a 50:50 ownership. It was even your idea to set up a trust company so that ownership was acknowledged by BOTH of us … you even discussed that our respective wills would have to be altered to ensure joint protection of our interests! Regarding my agreement with you to service the mortgage – in front of my own solicitor you agreed to float me up to $3,000-00 if need be … well – need has been – I’ve just had a back operation and am just about recovered. You were so concerned that you did not even bother to find out how it went. Friends do not do what you have done to me.
You know what amazes me the most – we stood in your kitchen and you had the cheek to question my integrity and whether or not I’d rip YOU off – who’s been ripped off Marylou? I have been advised that verbal agreements can be contested in law and that is exactly what I intend to do. I’m sorry I have fallen a bit behind with putting $$$$$$ into the mortgage account. I will attempt to get as much as I can in by the next repayment date…
You are, as always, welcome to inspect the property – you know what my phone numbers are.
It is to be seen that in the introductory paragraph the plaintiff refers to the intention “to ratify the agreement” and a lack of intention “of honouring the agreement”. The former possibly connotes that the defendant had yet to confirm her agreement to what had been discussed but the latter assumes that there is in existence an actual agreement. This confusion on the plaintiff’s part as to the legal effect (if any) of the dealings between the parties occurs often in his evidence.
In paragraph 1) of the letter, he refers to an investment seminar. He said in evidence that he had understood that the defendant was to lend him the money to pay for the seminar (approximately $2,500) but that during the seminar he was told that another person had made the payment and that he was liable to that person. He said that this occurred in the presence of the person who made the payment, Ms Jude. That evidence is not material to any of the claims made by the plaintiff.
In paragraph 2) of the letter he refers to the share‑trading agreement about which I have already made mention. In paragraph 3) of the letter he refers to what he says was discussed between the two of them relating to the proposed joint acquisition of the Unit. He said :
Had you not been interested [in the joint purchase of the Unit] I would have found someone else who was on the basis of a 50:50 ownership. It was even your idea to set up a trust company so that ownership was acknowledged by BOTH of us …
It should be noted that it was part of the plaintiff’s evidence that after the initial discussions in 2001 in relation to the proposed joint purchase of the Unit, a scheme which was raised by the plaintiff, no agreement was reached and the plaintiff actually talked with at least one other person, a Mr King, as to the possible purchase of the unit by Mr King. On the basis of that evidence, it is clear, as I have already said, that the plaintiff did not then regard himself as bound to enter into the joint purchase of the unit with the defendant.
The defendant replied in detail to the plaintiff’s letter. A copy of her letter is Exhibit P13. It is as follows :
Hello Steve
Further to your letter dated 2 September 2004, I provide the following information.
You seem to be confused on a number of issues so if I start at the beginning you may get a clearer understanding of why “things have come to this”.
1)On 14 August 2001 you and I attended the “Unlimited Wealth” investment information night, and agreed it would be good for us to attend the weekend seminar scheduled to commence 1 September 2001.
Since you did not have the money for the seminar ($3000.00) I offered to try and arrange a loan for you, either by way of me getting a credit card or a loan. You accepted this offer and I consequently secured the money for you on 18 August 2001, from “the complete stranger” (as you referred to her) Ms Margaret Jude. (No you had not met at that stage, however she took my word that you were a reliable trustworthy person)
Ms Jude suggested that instead of you repaying the loan to her, she would have a copy of the “Stag” program. Therefore I did not “lump you with a debt”. There was no financial debt to you. All you had to do was install the program and teach her how to operate it. In essence she was purchasing a program from you, which you were marketing at a retail cost of $3000.00.
A win – win, so it seemed. However to this day and after several attempts by Ms Jude to get you to complete the installation and train her, you have not honoured that agreement, which was your duty. I gave my word that you were honourable. So who deceived whom?
You had a $3000.00 seminar paid for and she has a program which does not work. (I hazard to guess the program would not have even cost you 10% of its retail price). Who got the better end of that deal?
You had ample time to withdraw from this arrangement as the seminar was still 2 weeks away and if you felt embarrassed you could have told me.
2)In 2001 I suggested to you that we could start a business venture together, with your knowledge of the share market and my expertise in Real Estate. I suggested we start by trading shares with the intention of building up a bank roll to buy our first property, which would naturally be in both names; under a company trading name or trust fund and obviously our wills would need to reflect any agreement we made.
You accepted my offer, although you said you did not know when you would be able to contribute financially to buying the shares (since you had no money). I understood that, none the less I suggested I would put in the initial $1000.00 to buy the first lot of shares. The agreement was “based” on you installing the “Stage” share program on my computer and teaching me how to operate it so we could continue trading.
On 17 July 2001 we opened the Comsec account in both names and I deposited $1000.00. I acknowledge you recommended the Ventracor shares, which I consequently purchased on 10 Aug 2001. You later loaded the program on my computer, however you never go it running properly nor did you teach me how to use it. (Even though I asked you on a number of occasions to help me you made no attempt to do so)
As such you have not, to this day upheld your part, thus rendering the agreement void. I sold the shares to help finance the painting, floor coverings and a new wardrobe for the unit and the guttering. I did not say “you have to be kidding”. I said you had not done your part.
3)On 14 August 2001 you and I attended an appointment (before we went to the “Unlimited Wealth” information session) with my bank’s lending manager to discuss our venture and loans for purchasing property. During the discussions it became clear that whilst you were earning good money, you had no savings or collateral and you had an outstanding debt to another bank, therefore you could not get a loan, neither on your own nor with me, in joint names. The lending manager calculated that I would qualify for a loan of $90,000 to $95,000, which meant I could purchase a unit.
In December 2001/January 2002 you told me your landlord wanted to sell 11/33 Beach Road Brighton, in a quick no fuss private sale. You asked me to buy the property (since it was in your best interest as you would not have to move). I signed a contract for the purchase of the unit on 15 January 2002. On 23 January 2002 I had an appointment with my accountant to investigate the possibilities of a trust fund.
However after those discussions and the information received earlier from the bank regarding your liabilities, it was not a viable option. I explained this to you and told you that in this instance I would own the unit outright and any future purchases would be based on you contributing to the partnership.
Had you not been happy with this you certainly did not indicate it to me, as there was still plenty of time for me to withdraw from the contract (given settlement was 15 February 2002) leaving you to find someone else to go into a 50/50 ownership. Furthermore if you believed you were a joint owner, why have I not received your share of the deposit and the outgoings? You have never attempted to involve your self in anyway.
4)With regard to me agreeing to “float you up to $3000.00 if need be”.
As I recall, you had an outstanding debt with a bank who was threatening to foreclose on you and take legal action to recover their monies, which I believe was approximately $3000.00. You asked me to go “Guarantor” for that debt. I agreed “in principle” to consider it. However after discussions with my loans manager, I told you I could not be a guarantor.
Why “things have come to this”
On 16 November 2003 I received a dishonoured loan repayment statement, which meant you had not been paying the rent. I called and told you and asked you to pay. You said you would “see” what you could do. You did not deposit any money into the account until 9 December 2003. The next deposit you made was 14 February 2004. (Over 2 months later) On 16 February 2004 I received another dishonoured loan repayment statement. I again called you and when I told you that you were now over 2 months behind in your rent your comment was “oh am I”.
On 19 February 2004 you deposited $200.00 and on 24 February 2004 you deposited $500.00 (less than half of what you owed)
On 10 March 2004 you deposited $500.00 and on 15 March 2004 you deposited $300.00, none of these payments making up for the arrears.
On 16 April 2004 I received yet another dishonoured loan repayment statement (each of these times I was penalised by the bank)
You had made no more payments since 15 March 2004 and you were getting further and further in debt. I again called you and told you we had to deal with this situation, and asked to meet with you so I could view your deposit slips against my bank statements. You flatly refused to meet me. Your refusal prompted me to tell you I would put the matter in the hands of the Rental Manager. You comment was “you just go right ahead”
Since then you have become further in arrears, making no payments in April or June and whilst you made payments in May and July the arrears were still not accounted for.
On August 12 2004 I sent you an SMS asking you to deposit rent you had not paid, as a loan repayment was due on the 14 August 2004 and there were insufficient funds to cover it. You said you would deposit $300.00 that day (which you did) $200.00 the following Monday 16 August 2004 (which you did) and $200.00 the following Monday 23 August 2004 (which you did not do)
Since I considered us to be friends and I trusted you I had no reason to doubt you were not paying the rent, until I started to receive the loan dishonour statements. It was then I discovered your payments were very spasmodic and in arrears. I consider that deception. You are not just “a bit behind” as you said in your letter; you are, as of 17 September 2004, $4225.00 in arrears.
Therefore I have instructed my Rental Manager to contact you again to resolve this matter and put a plan of action into place for you to repay the arrears and pay your future rent on time. Should you refuse to meet with her again, she will begin proceedings to have your tenancy terminated, whereupon I will then take proceed (sic) to legally recoup the arrears and associated cost. This is not the path I want to take however if it can not be resolved, you will leave me with no other alternative.
Steve we met in 1997 when you approached me to give you work experience. During that time, I developed a fondness for you, as I thought you were a decent hard working person, trying to move on with your life, albeit struggling and still grieving the recent death of your partner. I genuinely and sincerely extended my friendship and support, entertained you in my home and included you in my social gatherings. When you became involved with Eddie, I welcomed him as I had you, and I supported and counselled you many times during a long and extremely tumultuous period in your relationship.
I feel that whilst I extended my hand in friendship and support, in hindsight I believe the friendship was unbalanced and unfair. I did all the giving, invested a lot of time and work, put up the money and was prepared to take the risks.
There were business opportunities available for us to venture into (which were offered to you on a platter) unfortunately some were not viable and others you did not follow through with, eg; complete the installation and training of the “stag” program. That is the real issue here.
In all consciousness Steve, do you think you are entitled to 50% of the shares?
I would like to resolve this unpleasant situation amicably, therefore if you would like to meet with myself and my Rental Manager or a mediator I am happy to do so.
I look forward to receiving rental payments forthwith.
Sincerely without malice
Mary L Byrnes
In her affidavit sworn on 24 December 2004 the defendant refers to the contract of sale and purchase in respect of the relevant land (MLB1), the bank statements relating to the account into which the plaintiff made periodical payments (MLB3), and bank statements in relation to the home loan account with Bank SA (MLB4). She said that the plaintiff was a tenant in occupation of the unit prior to her purchase of the unit. She said that the plaintiff continued as a tenant after her purchase and agreed to pay rent of $150 per week. She then set out documentary details in relation to the payments made by the plaintiff (MLB5) and to the fact that she disclosed income for the year ended 30 June 2002 of rent payments totalling $2,850. (MLB6). There was an additional document relating to the alleged rent payments (MLB7) and it is clear from these documents that the defendant maintains that the plaintiff was in arrears of rent as at the date of vacation of the premises by him in September 2004.

In paragraph 12 of her Affidavit she said :
Now produced and shown to me and marked with the letters (MLB8) is a true and correct copy from the plaintiff to me dated 10 May 2004 and which letter states, inter alia, “would you please sign the enclosed form and post back to Centrelink(sic) for me so I can claim some of the rent money back.
In evidence, the plaintiff admitted that he sent such a letter to the defendant and that he submitted an application to Centrelink for an increased benefit (based on rent payments) being paid to him whilst he was incapacitated. No satisfactory explanation was advanced by the plaintiff as to why, on the one hand, he claimed that payments made by him were not rent but were in reduction of the mortgage, whereas, on the other hand, he made the application to Centrelink on the basis that such payments were rent. It seems to me that the most favourable position I can adopt in relation to this contradiction is to infer that the plaintiff was not clear in his own mind as to whether or not the defendant had agreed to purchase the property with him or whether he was merely paying rent.
I turn now to the question of what findings of fact may be made in relation to the plaintiff’s claim that he is the joint owner in equity of the unit. The question of what factual findings I make is finely balanced. I must ascertain the extent to which the plaintiff has given credible and reliable evidence. That must be weighed against the evidence adduced by the defendant, taking into account that the defendant’s evidence has not been tested by cross- examination.
During the course of my review of the plaintiff’s evidence, I have expressed from time to time the reservations I had about the reliability of the evidence given by the plaintiff. Having carefully considered the whole of his evidence, I have come to the conclusion that it would be unsafe to proceed to a finding that at any material time the plaintiff and the defendant entered into an agreement whereby the defendant would purchase the unit in her own name but would hold the same on trust for both of them jointly, the defendant’s obligation being to make the mortgage payments and the outgoings, such as rates and taxes, in respect of the property. Whilst I accept that such things may have been discussed by the plaintiff and the defendant prior to the defendant’s purchase of the unit, I do not accept the plaintiff’s evidence that the defendant had specifically agreed to such an arrangement. Given the unsatisfactory nature of the plaintiff’s evidence previously referred to, it would be unsafe to make such findings. Put another way, I find the evidence of the plaintiff so unreliable that I have no basis for concluding, in the face of clear and unequivocal evidence to the contrary by the defendant in her affidavit and in the correspondence, that he and the defendant entered into an agreement of the type contended for by him at any stage. At best, the parties never got beyond the negotiation stage. I specifically find that, by the time the defendant purchased the unit, she had not agreed to purchase it and hold the interest on trust for herself and the plaintiff in equal shares. The fact that the plaintiff remained in occupation of the unit until September 2004 and paid weekly payments of $150 together with other payments during that period, reflected a tacit arrangement between them that upon her purchase of the property the plaintiff could remain as tenant paying a weekly rental of $150.
Although the unreliability of the plaintiff’s evidence is a sufficient basis, by itself, for rejecting the plaintiff’s contentions, there are additional factors which tend to confirm the conclusion that there was no concluded agreement prior to the defendant’s purchase of the property. First, the agreement contended for by the plaintiff did not provide for what was to happen if the property was sold. Two extremes may be envisaged : on the one hand, that the plaintiff continued to make mortgage repayments for the number of years required to pay out the mortgage, in which event he would have effectively reimbursed the defendant for the entire purchase price and the interest paid on the loan obtained to pay the purchase price; on the other hand, the parties kept the property for a period of six months and then sold it. In that event, the plaintiff would have paid very little off the mortgage which represented the purchase price paid by the defendant. If the parties were then to divide the net proceeds of sale, after repayment of the mortgage, in equal shares, the profit to the plaintiff would almost be in the nature of a windfall.
Secondly, there is the complicating factor of the plaintiff’s occupation of the premises. If his weekly payments of $150 were in reduction of the mortgage and not rent, as he contended, he would have the occupancy of the unit free of charge. It is difficult to equate this with a business arrangement.
For these reasons I find that at the time of the defendant’s purchase of the unit and the settlement in respect of such purchase, there had been no agreement reached between the plaintiff and the defendant as contended for by the plaintiff. This means that the plaintiff’s claim in respect of the unit must fail.
There are additional reasons which support the dismissal of the plaintiff’s claim in respect of the unit. Even if it is assumed that an agreement as contended for by the plaintiff had been effected prior to the defendant’s purchase of the unit, the agreement was not reduced to writing and as such came within the provisions of section 26(1) of the Law of Property Act. This provision was relied upon by the defendant. The plaintiff in turn relied upon the provisions of section 26(2) of the Law of Property Act which recognise the equitable concept of part-performance. The plaintiff contended that the weekly payments of $150 represented part-performance on his part.
A recent South Australian case on the Statute of Frauds and the doctrine of part-performance is the decision of Wicks J in Van Schaik Organic Soils and Bark Supplies Pty Ltd v Woakwine Industries Pty Ltd (unreported, Jud No [2001] SASC 297) delivered on 23 August 2001. His Honour considered the question of part-performance in respect of an alleged oral lease in paragraphs [39] to [50]. Having referred to section 26 of the Law of Property Act, his Honour stated that the statute did not render a disposition in breach of the section as being void but merely unenforceable. Equity would intervene by way of the doctrine of part-performance if the acts of part-performance make it unconscionable for the defendant to plead the statute as a bar to the plaintiff’s claim. He cited Maddison v Alderson [1883] LR 8 App Cas 467.
He set out a passage from the speech of Lord Selbourne (at 479) as follows:
All the authorities show that the Acts relied up as part-performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged the acknowledged possession of a stranger in the land of another is not explicable except on supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into terms, the court regarding what has been done as a consequence of contract or tenure.
Wicks J then said (at [42] et seq):
[42]   This statement is concerned with two elements. There is the requirement that the Acts be ‘unequivocal’ and there is a further requirement that they be referable to ‘some such contract’.
[43]   Regent v Millett (1976) 133 CLR 679 affords an example of an unequivocal act. Taking of possession, effecting repairs, the making of mortgage payments and renovations and additions to the improvements are all capable of being relied upon as constituting acts of part-performance. Whether or not they can be so relied upon may depend on other factors as well when taken with the Acts abovementioned.
[44]   On the other hand, the part payment of the purchase money or even full payment of the money is an equivocal act. Also, acts preparatory to the completion of a contract and the mere holding over by a tenant (unless qualified by the payment of a different rent) are equivocal and are not to be regarded of themselves as acts of part-performance : Maddison v Alderson (cited above) at p479-480, per Lord Selbourne LC.
[45]   The second element relating to part-performance is that the Act relied upon is referable to ‘some such contract’. In McBride v Sandland (1918) 25 CLR 69 at p78, Isaacs and Rich JJ said :
‘(1)    The act relied upon must be unequivocally and in its own nature referable to ‘some such agreement as that alleged’. That is, it must be such as could be done with no other view than to perform such an agreement …
(2)     By ‘some such agreement as that alleged’ is meant some contract of the general nature of that alleged …
(3)     Approved circumstances in which the ‘act’ was done must be considered in order to judge whether it refers unequivocally to such an agreement as is alleged … Fair possession does not necessarily denote trespass or, alternatively, a contract at all; indeed, some contracts would not justify the act done. Possession may be the result of mere permission. But if the circumstances under which the possession was given are proved, then the court may judge whether the act indicates permission or contract, and, if contract, its general character. For instance … the expression ‘some agreement’ is used, we think, in contradistinction to the specific terms of the agreement, and not in the most general sense of any agreement whatever.
(4)     It must have been in fact done by the party relying on it on the faith of the agreement, and further the other party must have permitted it to be done on that footing. Otherwise it would not be ‘fraud’ in refusing to carry out the agreement and fraud, that is moral turpitude, if the ground of the jurisdiction …
Wicks J went on to hold that the acts relied upon by the plaintiff as part-performance were not sufficient.
Applying the principles referred to by Wicks J, it is clear to me that the mere payment of $150 per week is not an act which is unequivocally referable to an agreement of the type contended for by the plaintiff. Consequently, even if there had been entered into an agreement of the type contended for by the plaintiff, it falls foul of the provisions of section 26(1) of the Law of Property Act. The plaintiff is not rescued by the alleged acts of part-performance.
There is an additional basis upon which the plaintiff’s claim founders. It is clear from the decision of Maddison v Alderson and subsequent cases in the High Court, that the doctrine of part-performance only permits a plaintiff who relies upon an oral contract to seek specific performance of that agreement. In other words, the doctrine is dependent upon a right on the part of the plaintiff to seek specific performance of an agreement. In this case the plaintiff seeks declaratory relief. That by itself would be insufficient, but the reality is that if the plaintiff were to obtain a declaration that he is a joint owner in equity of the property, he could then seek specific performance of the relevant trust so that he might be registered as a legal joint owner of the property. Even if it is assumed that the plaintiff sought such relief, the remedy would be refused because the plaintiff has not covered, in his case, the question of his readiness, willingness and ability to comply with the terms of the agreement giving rise to the trust which he seeks to enforce. I mentioned earlier in these reasons that he had failed to make weekly payments of $150 amounting to a total of approximately $3,000. In addition, he has not made any weekly payments of $150 since September 2004. He made no mention of this omission in his evidence and I cannot be satisfied that the plaintiff is willing or able to make good any arrears of payments during the period that he was in occupation of the premises and the total lack of payments since September 2004. Consequently, even if a discretion arose to grant specific performance, it should be refused because this essential aspect of the grant of such a remedy has not been addressed by the plaintiff.
For these reasons the plaintiff’s claim to a joint interest in the unit must be dismissed. I have already mentioned why the plaintiff’s claim for a monetary judgment should be dismissed. My order will be that the action be dismissed. I will hear the parties as to costs.