Holdsworth v Holdsworth - [2001] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HOLDSWORTH -v- HOLDSWORTH [2001] WASC 25

CORAM: ANDERSON J

HEARD: 21-23 NOVEMBER 2000

DELIVERED : 2 FEBRUARY 2001

FILE NO/S: CIV 1905 of 1999

BETWEEN: LORRAINE LYNLEY HOLDSWORTH
Plaintiff
AND
MAVIS HOLDSWORTH
Defendant

Catchwords:

Contract - Accord and satisfaction - Consideration - Claim against deceased estate - No honest belief in reasonableness of claim - Compromise agreement - Claimant withdrawing claim on promise by trustee to grant interest in estate land - Whether good and sufficient consideration for promise

Town planning and development - Agreement to grant life tenancy in portion of lot - No prior approval of State Planning Commission - Validity of agreement

Legislation:

Town Planning and Development Act 1928, s 20

Trustees Act1962, s 64

Result:

Claim dismissed
Counterclaim allowed in part

Representation:

Counsel:

Plaintiff: Mr H N H Christie
Defendant: Mr P G Clifford

Solicitors:

Plaintiff: Legal Aid Commission
Defendant: Haydn Robinson

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

Ballantyne v Phillott (1961) 105 CLR 379
Cook v Wright [1861] 1 B&S 559
Glentham Pty Ltd v City of Perth [1986] WAR 205
Hussey v Olver, unreported; FCt SCt of WA; Library No 8441; 21 August 1990
Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363
Wigan v Edwards (1973) 47 ALJR 586

Case(s) also cited:

Blomley v Ryan (1956) 99 CLR 362
Boothey v Boothey, unreported; FCt SCt of WA; Library No 970092; 13 March 1997
Broughton v Snook [1938] Ch 505
Callisher v Bischoffsheim (1870) LR 5 QB 449
Chapple v Ghirardi Corp Pty Ltd [1999] WASC 237
Giumelli v Giumelli (1999) 161 ALR 473
Inwards & Ors v Baker (1965) 2 QB 29
Magee v Pennine Insurance Co Ltd [1969] 2 QB 507
Parker v Clark [1960] 1 WLR 286
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Raffaele v Raffaele [1962] WAR 29

ANDERSON J : This action concerns a parcel of land at Newman Road, Herne Hill. The land is not a lot, but is part of the lot contained in certificate of title volume 1281 folio 786 comprising some 33 acres. Until his death on 2 February 1998, this lot was owned by Mr William Begley. He had lived in a house on the land until 30 March 1996 when he entered a nursing home. In April 1990, William Begley's nephew, Robert Holdsworth, had placed another house on the land. This house had been cut up and transported from its original site in Mosman Park and reconstructed pursuant to an arrangement between Robert Holdsworth and William Begley, the terms of which are in dispute.
On completion of the second house, Robert Holdsworth and the plaintiff (who is his wife) and their children (of which there are now six) commenced to live in the house. They occupied it as their family home until July or August 1998 when the plaintiff and Robert Holdsworth separated and Robert Holdsworth moved out of the house. The plaintiff and the children continued to occupy the house and the plaintiff and some of the children still reside there. William Begley's house on the property was unoccupied after he moved into the nursing home in 1996.
The plaintiff claims to be entitled to live in the house with her children for the rest of her life. The plaintiff's claim is based upon a compromise agreement which is said to have been made between the plaintiff and the defendant, Mavis Holdsworth, on about 24 May 1998.
In order to understand how an agreement made between the plaintiff and Mavis Holdsworth could create an interest in the land, it is necessary to state some more background facts.
The plaintiff and Robert Holdsworth were married in September 1982. For a while they lived at Wyalkatchem near Mavis Holdsworth, who is Robert Holdsworth's mother. In about 1984, they separated and the plaintiff purchased a Homeswest home on one and a quarter acres at lot 10 Great Northern Highway, Upper Swan. She and Robert Holdsworth resumed cohabitation in about 1986 and lived together at lot 10, Great Northern Highway. The plaintiff kept horses and wanted more land than one and a quarter acres. Robert Holdsworth and William Begley had discussions in 1989 and early 1990, and they made an arrangement which, in general terms, was to the effect that Robert Holdsworth could put a house on William Begley's land and live there with his family. In par 3 of the statement of claim, the plaintiff pleads that arrangement as follows:
"In or about 1990 William Begley orally agreed to permit the Plaintiff and her husband to construct and live in a house and approximately 2.5 acres of surrounding land for so long as they wished, such land forming part of William Begley's property situated at Neuman Road, Red Hill … "
(I should say here that the location of the land in question is sometimes nominated as Neuman Road, Red Hill rather than Newman Road, Herne Hill.) It is part of the plaintiff's case that pursuant to, and in reliance on, this agreement, the plaintiff sold her Homeswest property at lot 10 Great Northern Highway and she and Robert Holdsworth purchased an old wooden house located in Mosman Park. They transported the house to William Begley's property, reconstructed it there, fenced off approximately 2.5 acres around it and improved that portion of the land by constructing sheds, stables and a riding arena.
My finding as to this arrangement is that there was a vague oral arrangement between Robert Holdsworth and William Begley whereby Robert Holdsworth would be permitted to put a house at the site, but only on condition that the site was excised from the main property by subdivision and purchased by Robert Holdsworth. Subsequent correspondence between William Begley and the Shire of Swan reveals that William Begley never intended to grant to Robert Holdsworth a licence to occupy his land. It is clear that he intended that there be a subdivision which would enable him to sell the land on which the second house had been set down.
Exhibit 14 is a copy of an application for approval of a subdivision dated 26 March 1990, signed by William Begley. This was before the second house was put on the land. According to the statement of claim, the second house was put on the land in about April 1990. I find that William Begley gave this application to Robert Holdsworth to process and left it to him to get the subdivision. Exhibit 17 is a copy of a letter written by Robert Holdsworth to the State Planning Commission dated 18 September 1990 in support of the application for the subdivision and attaching a handmade plan of subdivision. I do not know whether William Begley saw the letter or approved the plan. I do not know who drew up the plan, but it was probably Robert Holdsworth. The plan proposed that five acres surrounding the second house should be subdivided from the main parcel. The copy letter from Robert Holdsworth is in the following terms:
"Dear Sir
This letter is to explain fully why we would like to subdivide this property.
The whole of Lot 1 Neuman Road is owned by my uncle, Mr Begley.
As he is getting on in years it was decided that one of the family should live near to him for obvious reasons.
We are presently living on the portion of lot 1 we wish to subdivide off.
The other alternative was for him to sell and move, but this he is reluctant to do as he has lived here many years and his sheep and orchard are his only interests.
We realise that the plan for this area stipulates 10 acre lots but because of the position of present buildings etc and the geography of the land this size lot is not practical.
A good number of lots around here aren't 10 acres so maybe you can assist us.
Thank you.
R G Holdsworth"
The application for subdivision approval, the copy letter and the plan are stamped as having been received by the Planning and Urban Development Department on the same date, 11 October 1990. The delay between the date on which William Begley appears to have signed the form of subdivision application and the receipt by the planning authority of all three document is unexplained. The application was refused in December 1990.
It is reasonably clear that by early 1994 William Begley was becoming very concerned about the fact that the plaintiff and Robert Holdsworth were still occupying a part of his land without there having been a subdivision. He began written and oral communication with officers of the Shire in which he made it very clear that he considered the whole matter to be in a very unsatisfactory state. This material shows that it was plainly on his mind to get the second house removed from his property if he could not get a subdivision.
In May 1994, William Begley wrote to the Department of Planning and Urban Development (exhibit 30) inter alia in the following terms:
"I expected Mr R G Holdsworth to shift his house (it was transported to the site, see attached photocopy of Sunday Times April 15 1990) when the application for subdivision was rejected by you, however, he has since increased his use of my land, fencing off paddocks for his own use.
I am now in my 89th year, widower since 1967, childless, live alone and now wish to sell my property in order to have the money required for entry to an old age care unit, but I am deeply concerned that the second house on the property will prevent the sale or that Mr R G Holdsworth may be able to claim Adverse Possession (as recently publicised on TV in Tasmania) of my land if I do not remain resident on it.
I am still prepared to sell Mr R G Holdsworth an acre of my land to give him title to his house if you could approve it as a special case, and if that is not possible can you please assist me and advise what action I should take to have the second house shifted and regain possession of my land. If what I ask is not within your power to approve, would you please tell the procedures etc I have to follow in order to appeal for the Minister's involvement on humanitarian grounds."
On 7 June 1994, William Begley made another application for approval of a plan of subdivision (exhibit 32). On this occasion, the plan proposed an excision of 4047 square metres (one acre) surrounding the second house. That application was refused on 31 August 1994 and on 23 October 1994 William Begley appealed to the Minister against the refusal. Accompanying the notice of appeal was a statement signed by William Begley. According to that statement, the only basis upon which William Begley ever agreed to allow the second house to be set down on his land was that there would be a subdivision of approximately one acre and a sale of the subdivided lot to Robert Holdsworth (exhibit 37).
On 10 February 1995, the Minister for Planning advised William Begley that his appeal was dismissed.
The plaintiff did not take part in the discussions between Robert Holdsworth and William Begley concerning the basis upon which Robert Holdsworth would be permitted to place a house on William Begley's land. She was not a party to any arrangement or agreement between William Begley and Robert Holdsworth and was not present when they held their discussions and could not give evidence of their discussions. Robert Holdsworth did not give evidence. There was, in fact, no arrangement or agreement in the terms pleaded in par 3 of the statement of claim and I find that the plaintiff could not reasonably have believed that there was any such arrangement. As the evidence which has been set out above shows there was to be a subdivision and William Begley had agreed to sell to Robert Holdsworth the subdivided portion. The house was put on the land in anticipation that the subdivision would be approved.
What Robert Holdsworth and the plaintiff did and whatever risks they took in anticipation of getting a subdivision and ownership of the parcel of land in question does not give rise to any equities, in the circumstances.
By his Will dated 4 September 1996, William Begley created a testamentary trust which he called the M Holdsworth Trust, comprising one‑eighth of his estate. He appointed the defendant, Mavis Holdsworth (Robert Holdsworth's mother), as trustee of the M Holdsworth Trust and directed that the 33 acres on which he had lived was not to be sold, but was to form part of the corpus of the M Holdsworth Trust. No provision was made in the Will for the plaintiff.
The plaintiff (but not Robert Holdsworth) decided to make a claim against William Begley's estate. On 30 April 1998, she wrote to the executor, Mr Edwin Begley, in the following terms:
"I wish to lay claim to the estate of the late Mr William Begley as per your advertisement in The West Australian of April 25 1998.
My claim is upon the property situated at 1 and 69 Neuman Road Herne Hill.
This property totals some 36 acres and has two dwellings upon it. The one at 1 Neuman Road in which the late Mr Begley himself resided and the one at 69 Neuman Road in which I, my husband and my six children reside and have resided for the last 8 years.
It is this section of the property, the house at 69 Neuman Road and surrounding 10 acres over which I lay claim.
The history surrounding my family's residence at 69 Neuman Road is well documented.
When we first built our home on this site 8 years ago it was Mr Begley's intention to subdivide off 3 acres for us. This was attempted. However the Shire of Swan did not approve this subdivision.
A further application for 5 acres was made. This too was refused by the shire, the minimum subdivision they would allow being 10 acres.
Mr Begley had intended to make a further application for the 10 acres and gifting this to our family, as the shire had indicated that they would approve this. However Mr Begley's health was failing and he never got around to doing this before becoming too ill to proceed with the matter.
As my family has resided at this address continually for the last 8 years and as Mr Begley has made the subdivision applications referred to above, I believe that this adequately demonstrates that it was Mr Begley's intention for my family and I to have this land adjoining our home.
I trust that these details are sufficient to acquaint you with the facts and history of our position.
Yours sincerely
Lorraine Holdsworth."
The first thing to note about this letter is that it states an arrangement which is inconsistent with the arrangement pleaded in par 3 of the statement of claim, but which is entirely consistent with an arrangement for a proposed subdivision and conveyance.
The second thing to note is that the history given by the plaintiff does not accord with the documents which were tendered in evidence. The first plan of subdivision put forward in October 1990 by Robert Holdsworth purportedly on behalf of William Begley was for a five‑acre subdivision, not three acres. The second application put forward by William Begley in June 1994 was for a one‑acre subdivision, not five acres.
The third thing to notice is that the statement in the letter "Mr Begley had intended to make a further application for the 10 acres and gifting this to our family … " is completely at odds with the correspondence between William Begley and the Shire and the statements made by him in support of the last application for a one‑acre subdivision and I find it to be not true. There is not the slightest indication in the correspondence and there is no other evidence that William Begley ever intended to make an application for a 10‑acre subdivision, or that he ever intended to gift any subdivided portion to the family of Robert Holdsworth. On the contrary, in the statement in support of the one‑acre subdivision, William Begley specifically stated that the reason why the application was in respect to such a small portion was that Robert Holdsworth could not afford to purchase a larger portion.
I find that the claim put forward by the plaintiff in this letter was spurious in the sense that the plaintiff knew that important elements of her claim were false. She knew that William Begley had never intended to apply for a subdivision of 10 acres and had never intended to gift any interest in or portion of his land to Robert Holdsworth or any member of his family.
The plaintiff gave evidence that after she made her claim against the estate, she received a telephone call from Mavis Holdsworth in which Mavis "informed me that I should withdraw the contesting of the Will because Eddie would take me to court and he would win and he would take everything that Rob and I had". Her evidence was that a little while later she telephoned Edwin Begley to discuss the matter with him, but Edwin Begley told her to talk to Mavis as "it had nothing to do with him, that he was just the executor and that his job was to give the beneficiaries their inheritance".
The substance of her evidence was that in subsequent discussions with Mavis Holdsworth, she pressed Mavis to agree to give 10 acres of the land surrounding the house to her and her husband. Her evidence on this point included the following (t/s 49):
"So I said to her, 'You and I both know that you have the property' and she said, 'Yes, but it's not mine yet.' I said, 'But Eddie said that an agreement could be reached between the two of us, that you could actually settle it by giving us an agreement,' and she said, 'Well, what do you want?' I said, 'Just that we have security over our house and 10 acres.' She said that we've got nothing to worry about, she said she had no plans for the property, that we could just go on living there. I said, 'Well, why is it so hard that you can't just give that to us in writing if that's the case?' She asked me what do I want and I said, 'Just security over the house and some land'."
She was asked by her counsel whether there was a reason why she had referred to 10 acres. Her answer (t/s 50) was:
"Well, 10 acres was the least amount of land that the shire would cut out. I didn't care if it was 3 acres. It wasn't - I still don't mind if it's just the house and one paddock, but it was the shire and I knew enough through reading documents that that was 10 acres. That's why I actually contested the will saying 10 acres."
I have supplied the emphasis. The evidence contradicts the assertion made by the plaintiff in her letter of 30 April 1998 that her claim for 10 acres arose from the fact that it was William Begley's intention to give them 10 acres. Her evidence stands as an admission that the assertion in her letter as to William Begley's intention was simply untrue.
The conversation ended with Mavis Holdsworth agreeing to speak to her lawyer and have something drawn up. This she did. A day or two later, she telephoned the plaintiff and read to her the text of a document. The plaintiff asked her to "have it signed and witnessed". Mavis Holdsworth did sign the document and it is exhibit 3. It is in the following terms:
"Lorraine L Holdsworth
69 Neuman Road
Red Hill 6056
Upon the coming into existence of The M Holdsworth Trust provision will be made for you, Robert and your children to occupy for the period of your life the house 69 Neuman Road Red Hill and the 10 acres upon which that the house is situated.
M Holdsworth
24 May 1998"
The plaintiff's evidence was that upon receiving this letter she telephoned Edwin Begley and told him that she and Mavis had reached an agreement and she would sign "a withdrawal form". Her evidence was that Edwin Begley said to her that he was going to be at the property at a particular day and time and the plaintiff told him that she would meet him there. Her evidence was that she was riding her horse in the horse arena on the appointed day and saw Edwin Begley arrive and trotted her horse down through the paddock, and met him "at Uncle Bill's gate". She said that they had a conversation during which there were mutual expressions of relief that the dispute was over and Edwin Begley handed her a withdrawal to sign, which she did (t/s 52). The withdrawal which she did sign is exhibit 4 and it is in the following terms:
"The executor estate of William Begley
3 Castaway Court
Sorrento 6020
I, Lorraine Holdsworth withdraw my claim on the estate of William Begley.
(Signature of Lorraine Holdsworth)
25-5-1998
Lorraine Holdsworth
69 Neuman Road
Red Hill 6056"

These are the facts said to sustain the plea in par 9 of the statement of claim in the following terms:
"On or about 24 May 1998 the Plaintiff and the Defendant agreed partly orally and partly in writing that, if the Plaintiff did not proceed with her claim against the Estate of William Begley, the Defendant would permit the Plaintiff, her husband and their children to occupy for the period of the Plaintiff's life, the House and 10 acres of land surrounding the House and forming part of the Property."
In par 10 and par 11 of the statement of claim it is pleaded that the agreement constituted "a grant to the Plaintiff and her husband of a life interest in the House and the surrounding 10 acres of land forming part of the Property", alternatively that it "constituted an irrevocable licence for the Plaintiff, her husband and their children to occupy for her life, the House and the surrounding 10 acres of land forming part of the Property".
Mavis Holdsworth gave evidence to the effect that prior to her discussion with the plaintiff she had become very concerned about what was happening. She did not believe her son, Robert Holdsworth, wished to pursue any claim against the estate and did not believe that the claim being made by the plaintiff could succeed. She said (t/s 89) "I thought it was bad because I just couldn't see, if all the evidence was right, that she had any claim at all". She had had conversations with Edwin Begley, who had told her that he would resist the claim in the courts and that he had no doubt that the claim would fail. She gave evidence that Edwin Begley told her that the plaintiff and Robert Holdsworth and the children "would be thrown off the property and he would sell their animals and everything they had to pay the expenses". Her evidence was that this concerned her and she did want the plaintiff to withdraw her claim so that the plaintiff and Robert Holdsworth would not lose everything. She said that she had discussions with Edwin Begley and that it was as a result of those discussions that she had exhibit 3 (the letter of 24 May 1998) and exhibit 4 (the withdrawal form) prepared. She said that she had discussed a rental or lease agreement with Robert Holdsworth, that he was happy to enter into such an agreement and Edwin had told her that exhibit 3 "would cover until I drew up the rental or lease agreement - until after the trust came into effect". She said that she told the plaintiff that she would go to "an estate agent and have a rental agreement drawn up, or a lawyer, and have it drawn up legally. The other one [exhibit 3] was just sort of to hold it over until after the trust came into effect". Her evidence was that very shortly after the land was transferred to her as trustee of the M Holdsworth Trust she learned that the plaintiff and Robert Holdsworth had separated again. Her evidence was to the effect that their separation changed everything. After giving them some time to "see if they could work out their differences" she said she went to solicitors and on her instructions they wrote to the plaintiff demanding vacant possession of the land or that the plaintiff enter into a lease on satisfactory terms.
Edwin Begley gave evidence that at no stage did he accept that the plaintiff ever had a legitimate claim against the estate. His intention always was to reject the claim and there was never any question of compromise in his mind. Upon receipt of the plaintiff's letter of claim dated 30 April 1998, he prepared a notice under s 64 of the Trustees Act rejecting the claim and requiring the plaintiff to take legal proceedings to enforce the claim. His letter concluded:
"I should also indicate to you that any such proceedings will be defended and costs sought against you."
His evidence was that he attended at the property on 25 May 1998 for the purpose of personally serving the notice on the plaintiff and having her sign an acknowledgment of receipt of it. His evidence was that when he tried to do so, the plaintiff refused to accept the notice. Edwin Begley's evidence was that he then read to the plaintiff the contents of the notice. It is exhibit 12. He adamantly denied offering to the plaintiff the form of withdrawal, that is, exhibit 4. He said she handed it to him already signed.
In the view I take of the case, it is not necessary to resolve the differences between the evidence of these three witnesses, but, in case it matters, I should say that I accept the evidence of Edwin Begley that he never spoke to the plaintiff in the language of compromise and that he attended at the property not for the purpose of conciliation, but to personally serve the s 64 notice upon the plaintiff. I accept his evidence that the plaintiff declined to accept the notice and instead handed him her signed withdrawal of claim.
As I understand the statement of claim, the plaintiff's principal claim is that there was a promise by the defendant, Mavis Holdsworth, partly oral and partly in writing, in her capacity as trustee of the M Holdsworth Trust, to grant a life interest to the plaintiff herself in some portion of the land which had been William Begley's land. Accepting that Mavis Holdsworth did make a promise to the plaintiff intending the promise to have contractual effect, the promise is wholly contained in exhibit 3. I am not persuaded that Mavis Holdsworth made any other promise. There seems little dispute that if there was any consideration for that promise, it was the plaintiff's promise to withdraw her claim against the estate, or the actual withdrawal of that claim, by her delivery to Edwin Begley of the notice of withdrawal, exhibit 4. Whether that was good and sufficient consideration for the defendant's promise depends on whether the plaintiff's claim against the estate was genuine.
In my opinion, it was not.
Speaking broadly, the basis the plaintiff's claim against the estate is that William Begley caused the plaintiff to act to her detriment by making a promise to her husband, Robert Holdsworth. It was not suggested by the plaintiff in evidence that William Begley made the promise to her. It may be accepted for present purposes that a promise by A to B which causes C to act to her detriment may provide C with a cause of action against A, but I am not to be taken as so deciding. The proposition was not argued and does not arise for decision. At the very least, however, before equity would intervene, the unfulfilled promise would need to be clearly proved and the relief which is said to arise from it would need to correspond to the promise. One difficulty in this case is that there appears to be no correspondence between the promise said to be unfulfilled and the claim said to arise from it. As it is pleaded in par 3 of the statement of claim, the promise was to gift to the plaintiff and Robert Holdsworth a life interest in an undefined parcel of 2.5 acres "forming part of William Begley's property". The claim which the plaintiff actually made against the estate in her letter of 30 April 1998 appears to be for outright ownership of 10 acres to be excised from the land by subdivision. It is by no means easy to see (I would venture to say it is impossible to see) how the promise pleaded in par 3 of the statement of claim could provide the foundation for the claim which the plaintiff actually made against the estate.
Fortunately, this difficulty can be put to one side because there is not the slightest evidence that William Begley ever intended to give, in the sense of gift, to the plaintiff and/or Robert Holdsworth a life interest in part of his land, or that he ever promised that he would do so. Nor is there the slightest evidence that William Begley ever intended to convey to the plaintiff and/or Robert Holdsworth by way of gift a lot subdivided from his land. Nor is there any evidence that he ever promised that he would do so. Nor is there any evidence of unconscionable conduct on his part such as to warrant the intervention of equity.
I find that the plaintiff never believed she had a genuine claim against the estate and never intended to prosecute the claim which she had made in her letter of 30 April 1998.
It is well‑settled that it is no consideration to refrain from a course of action which it was never intended to pursue. An enforceable agreement of compromise depends upon there being a reasonable claim on the one side which it was bona fide intended to pursue: Cook v Wright [1861] 1 B&S 559 especially at 569; Ballantyne v Phillott (1961) 105 CLR 379 especially per Windeyer J at 399. See also Cheshire & Fifoot, Law of Contract, 7th Australian ed par 4.26. In Wigan v Edwards (1973) 47 ALJR 586 at 595, Mason J observed that the law with respect to compromise agreements insists "that the claim in dispute is one which was honestly or bona fide made … " so as not to assist a party who would seek to gain an unfair advantage by making unscrupulous threats.
If I am wrong in this conclusion that there was no consideration for Mavis Holdsworth's promise in her document of 24 May 1998, I think the agreement fails anyway on the ground that it is both uncertain and incomplete. It is entirely unclear what "provision" is intended in the document. The defendant's evidence was that she had in mind a lease arrangement to be drawn up by a lawyer once the property had been transferred to her. There are many different arrangements that might have been entered into to "provide" for the plaintiff, Robert Holdsworth and the children. Was there to be a subdivision? To whom was the subdivided lot to be conveyed? If there was not to be a subdivision, was there to be a lease or merely a licence to occupy? To whom was the licence or the demise to be granted? Upon what terms, if any, as to rent and outgoings? And so on. There is also the problem that "the 10 acres upon which the house is situated" is not identified.
Then there is the matter of s 20 of the Town Planning and Development Act1928. It is well‑settled that a transaction falling within s 20(1)(a) of the Act, if entered into without the approval of the Commission, is illegal, void and unenforceable: Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363.
The agreement pleaded in par 9 of the statement of claim is such a transaction. It was, at the very least, the grant of a licence to use or occupy land for a term exceeding 10 years. That is prohibited by s 20(1)(a) without the prior approval of the State Planning Commission. The approval of the Commission required by the subsection is an approval of the doing of any of the acts stipulated in the subsection, and the approval must be obtained before the act is done: Glentham Pty Ltd v City of Perth [1986] WAR 205. In this case, the relevant act was the act pleaded in par 9, namely, agreeing to "permit the Plaintiff, her husband and their children to occupy for the period of the Plaintiff's life, the House and 10 acres of land surrounding the House and forming part of the Property". It was that agreement for which prior approval was required. No such approval was sought.
The case is to be distinguished from such cases as Hussey v Olver, unreported; FCt SCt of WA; Library No 8441; 21 August 1990 in which the agreement was to convey a subdivided lot, in which there was an implied term that the vendor agreed to do all such things as are necessary on his part to subdivide the land so as to be able to transfer the land, as a lot, to the purchaser. In the agreement in question, the subject matter is not a lot. The agreement purports to create an interest in land other than as a lot and it is precisely that which is forbidden by s 20(1)(a) except with the prior approval of the State Planning Commission.
In my opinion, if there was an agreement between the parties in terms of the agreement pleaded in par 9 of the statement of claim, it was illegal and void and cannot be enforced.
The plaintiff's claim must be dismissed.

Counterclaim

The defendant counterclaims against the plaintiff for the recovery of certain items of furniture alleged to be property of the defendant in the possession of the plaintiff. The items in question are:
Dining room extension table
Beaconsfield wardrobe
Timber sideboard
Large single wood linen press
Large cast‑iron child's cot
The defendant gave evidence that each of these items was loaned by her to her son, Robert Holdsworth, for use by him and his family. That evidence was hardly challenged and not contradicted. As I have said, Robert Holdsworth was not called to give evidence. The plaintiff's answer to the claim for return of the furniture is that the cause of action is barred by lapse of time. I do not accept that submission. The plaintiff is in possession of the furniture pursuant to an arrangement of loan. The claim for its return is in detinue and that cause of action arose upon demand being made for the return of the furniture. That demand was made by solicitor's letter dated 23 September 1999. The claim must be allowed.
There is a counterclaim to recover $5,630.85, being an amount paid by the defendant to the Water Corporation for water supply to the whole property and other charges levied by the Water Corporation with respect to the supply of water to the property. The parties are agreed that these charges go back to 1 July 1994. There is no evidence as to actual water use over that time - who used it and for what purpose. Bearing in mind that the counterclaim is against the plaintiff personally, I am of the opinion that it has not been properly proved. William Begley lived at the property until March 1996. Robert Holdsworth lived at the property until June 1998. The charges presumably relate to water used anywhere on the property, not just in the house occupied by the plaintiff. I am not satisfied that personal liability against the plaintiff has been established. This part of the counterclaim must be dismissed.