Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew

[2018] NSWSC 1186

Supreme Court

New South Wales

Medium Neutral Citation:

Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186

Hearing dates:

27 – 28 November 2017; final written submissions 9 March 2018

Decision date:

02 August 2018

Jurisdiction:

Equity

Before:

Robb J

Decision:

See paragraphs 230 to 258

Catchwords:

EQUITY — Equitable interests in property — Nature of equitable interests — whether the plaintiff has a beneficial interest in Lot 1

 

ESTOPPEL — Proprietary estoppel — Encouragement — whether by reason of encouragements the defendant gave to the plaintiff the defendant is estopped from denying the plaintiff is entitled to a beneficial interest in Lot 1 — a promise or representation by the defendant to leave Lot 1 to the plaintiff in the defendant’s will — defendant ceased to have testamentary capacity to execute will — the defendant is in principle estopped from denying the plaintiff is entitled to a beneficial interest in Lot 1

  CONTRACTS — Formation — Oral Contract — whether the plaintiff and defendant entered into an oral contract — whether the defendant agreed to leave Lot 1 to the plaintiff in the defendant’s will in exchange for work undertaken on Lot 1 by the plaintiff — defendant ceased to have capacity to make a will — whether plaintiff entitled to damages for breach of contract — no oral contract arises

Legislation Cited:

Real Property Act 1900 (NSW)
Conveyancing Act 1919 (NSW)

Cases Cited:

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Dable v Peisley [2009] NSWSC 772
Menczer v Menczer [2009] NSWSC 1466
Saliba v Tarmo [2009] NSWSC 581
Ak-Tankiz v Ak [2014] NSWSC 1044

Category:

Principal judgment

Parties:

Kevin John Lewis (plaintiff)
Peter William Stewart by his tutor Peggy Lillian Mayhew (defendant)

Representation:

Counsel: IR Coleman SC/LM Clarke (plaintiff)
MM Pringle (defendant)

  Solicitors: JP Capsanis & Co (plaintiff)
Turner Freeman (defendant)

File Number(s):

2016/2731

Judgment

1. The plaintiff in these proceedings is Mr Kevin John Lewis. The defendant is Mr Peter William Stewart. Mr Stewart defends the claim by his tutor Ms Peggy Lillian Mayhew, who is Mr Stewart's sister. The case has been conducted on the basis that in late 2014, Mr Stewart suffered a stroke that rendered him legally incapable, at least in respect of being able to conduct his own defence.

2. In these proceedings, Mr Lewis makes a claim for the enforcement of certain rights that he asserts in relation to Lot 1 in Deposited Plan 521955, known as 214 Yarramundi Lane, Agnes Banks in this State (Lot 1). Lot 1 is contiguous with Lot 2 in the same Deposited Plan (Lot 2). Lot 1 has an area of about 2 acres. Lot 1 is contiguous with the bank of the Hawkesbury River at Agnes Banks.

3. At all material times, Mr Stewart has been the registered proprietor of both Lot 1 and Lot 2. Mr Stewart’s father previously had an interest in both Lots, but that interest passed to Mr Stewart upon his father’s death.

Mr Lewis’ claim

4. These proceedings were commenced by a summons filed in Court by Mr Lewis, acting for himself, on 4 January 2016. As I understand it, the only relief sought by Mr Lewis was the extension of the operation of a caveat No AJ986128X that Mr Lewis had lodged against the title to Lots 1 and 2 (although the caveat was not in evidence).

5. Leave to file the summons was given by Black J sitting as the vacation judge. The operation of the caveat was extended until 11 January 2016, and consequential orders were made.

6. On 11 January 2016, Black J gave Mr Lewis leave to amend his summons to seek leave under s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat in respect of the interest claimed by him based on the same facts as caveat No AJ986128X. The matter was stood over until 13 January 2016.

7. Mr Lewis filed an amended summons on 11 January 2016, acting for himself. He expressed his claim as: "100% equity in Lot 1 DP 521955 property".

8. On 13 January 2016, Black J gave to Mr Lewis leave to file and serve a further amended summons adequately specifying the final and interlocutory relief which he sought, including any interlocutory relief under s 74O of the Real Property Act, by 22 January 2016.

9. An amended summons was filed by Mr Lewis personally on 10 February 2016. In substance, Mr Stewart sought an extension of the caveat under s 74O of the Real Property Act, and what was described as “100% equity in Lot 1 and 30% equity in Lot 2”.

10. It appears that on 19 May 2016, a further amended summons was filed on behalf of Mr Lewis, this time by a solicitor retained by him. The principal relief sought by Mr Lewis was a declaration that “a promise was given and or representation made by the defendant to the plaintiff that in return for work performed, materials supplied, services rendered and expenses carried out and incurred by the plaintiff in respect of Lots 1 and 2, the defendant would make a will in which he left to the plaintiff the whole of his interest and estate in Lot 1”.

11. Mr Lewis sought a declaration that he relied upon the promise by Mr Stewart and suffered detriment in that he carried out the work requested of him and that "the defendant has acted and is acting inconsistently with the assumption without ensuring no detriment is caused to the plaintiff including expressing an intention to sell Lot 1".

12. Mr Lewis claimed that he had an interest in Lot 1 by reason of a proprietary or equitable estoppel.

13. In the alternative, Mr Lewis claimed that he was entitled to reasonable remuneration and compensation for the work done, the materials provided, the services rendered and expenses incurred upon a quantum meruit.

14. On 8 August 2016, Mr Lewis filed a statement of claim, followed by an amended statement of claim on 19 August 2016. The amended statement of claim was Mr Lewis' operative pleading as at the commencement of the hearing. It was filed by his solicitor.

15. In the relief claimed, Mr Lewis sought a declaration that he had an interest in Lot 1 (now being described as the whole of the land contained in certificate of title Folio Identifier 1/521955) "on the basis of proprietary and/or equitable estoppel" (Prayer 1). Alternatively, Mr Lewis sought reasonable remuneration for work done and materials provided, services rendered and expenses incurred by him upon a quantum meruit (Prayer 4). Mr Lewis sought certain other relief, including by Prayer 5, an order that an account be taken in relation to the work done, materials provided, services rendered and expenses incurred by him to determine the amount to which Mr Lewis was entitled.

16. It is to be noted that Mr Lewis did not include allegations in his amended statement of claim for the purpose of quantifying the value or cost of any work done by him. Further, as will be seen, when Mr Lewis sought to amend his statement of claim further by claiming a right to damages for breach by Mr Stewart of an agreement to leave Lot 1 to Mr Lewis in his will, Mr Lewis did not seek to quantify the amount of the damages claimed. Mr Lewis proceeded upon the basis that, if liability was determined in his favour in a way that entitled him to compensation, further steps would be necessary in the proceedings to quantify the amount. As I understand the approach taken by Mr Stewart, Mr Lewis' approach was not opposed.

17. Relevantly, by his pleading, Mr Lewis alleged that in 2001, Lot 1 contained varying quantities of sandy soil, gravel and stockpiles of tailings, which had been stored and processed on the land commencing about 1980 in connection with river sand and gravel mining operations (par 4).

18. In pars 5 to 12, Mr Lewis pleaded the history of operations on Lots 1 and 2 concerning sand mining and related works, leading to their remaining on the Lots "unwanted waste including large quantities of old equipment, pieces of plant and stockpiles of tailings".

19. The materials that Mr Lewis alleged had been left on Lots 1 and 2 were the consequence of sand mining and related works carried out by parties other than Mr Lewis.

20. Mr Lewis alleged that from the mid-1990s, by oral agreement between himself and Mr Stewart and Mr Stewart's now deceased father, Mr Lewis occupied Lot 1 and a small portion of Lot 2 for $2000 per annum, paying this rental until about 2003 (par 10). Mr Lewis used the Lots for storage, repairs and maintenance of his equipment (for his then operating dragline business, operated through a company) (par 11).

21. Mr Lewis further alleged that, when the previous sand mining operations ceased, he commenced a cleanup and did other work to Lot 1 and the part of Lot 2 occupied by him (par 12).

22. Mr Lewis alleged in par 13 that the work done "was to the acknowledgement, agreement and for the benefit of the defendant and the then co-owner". Mr Lewis gave the following particulars:

Particulars

(a)   The acknowledgements were oral and implied from discussions and conversations in person involving the plaintiff and the defendant on Lot 1 when the defendant and the defendant's father called by at Lot 1 and in telephone calls between the plaintiff and the defendant;

(b)   The agreement was oral and implied commencing in 1998 until the winter of 2003. In so far as oral, this was over a number of conversations between the plaintiff and the defendant and the defendant's father.

(c)   The benefit included cleaning up the properties from mining waste, complying with Hawkesbury Council orders, returning the properties to their original conditions (rehabilitation) and other work.

23. Mr Lewis pleaded the nature of the work carried out by him in respect of the Lots in par 14. He gave the following particulars:

Particulars

(a)   cut-up old steel and plant and dispose of same;

(b)   remove heavy mining waste such as front-end loader tyres;

(c)   remove and dispose of used and old conveyor belts;

(d)   cut-up and dispose of truck (vehicle) bodies, old cars, rollers, old plant, old rusted steel;

(e)   drain and crush rusted and surplus 44 gallon drums;

(f)   dispose of timber waste;

(g)   remove old mining waste and dispose of other objects, material and rubbish;

(h)   carry out earth works, including clearing of sections of Lot 2, clear and level the entire boundary of Lot 2, strip contaminated soil, stockpiling, dig virgin material out of stripped-out areas, remove large quantities of virgin soil, stock-pile the virgin material, place back stripped off stock, pile contaminated soil including levelling out of soil;

(i)   level out tailings on both lots;

(j)   remove all contaminated soil and tailings moved off Lot 2 onto Lot 1 into a mound on Lot 1;

(k)   repair damage to the access haul road into Lots 1 and 2 and river;

(l)   remove old haul road ramp belonging to Lots 1 and 2 and rebuild to the river;

(m)   clean-up the whole of Lot 2 of old machinery;

(n)   do maintenance on old shed and old house situated on Lot 2 and other maintenance;

(o)   repair river bank on Lot 1 to prevent flooding occurring to Lots 1 and 2;

(p)   clean-up river bank as it had become a dumping ground and tip running all the way from Lot 1 to the river flat;

(q)   deal with the authorities regarding occupational health and safety issues and other regulations;

(r)   clean-up rubbish and mining waste on neighbouring property (Council reserve) on instructions of Hawkesbury Council;

(s)   carrying out security and general maintenance on Lots 1 and 2 (the latter's outside boundary);

(t)   organise a fencing contractor, fencing materials and a survey of the boundaries of Lot 1 and northern boundary of Lot 2 which included prior preparation of the areas for surveying and fencing, that is, cleaning prior clearing and levelling, and then organising fencing contractor and surveyor, attending and overseeing them;

(u)   deal with disputes concerning neighbours;

(v)   generally maintain and improve Lot 1; and

(w)   destroy priverts (sic) and dead orange trees to whole of Lot 2.

24. Mr Lewis alleged in par 15 that the works were continued and carried out until the end of 2014 for no payment, except for an inconsequential amount.

25. Mr Lewis alleged that, in carrying out the works, he used his own equipment or his company's equipment, or hired equipment, or paid contractors and employees, provided materials, and personally carried out thousands of hours of work at his personal or his company's expense (par 16)

26. In par 21, Mr Lewis alleged that in the period 1998 to 2003, he offered to Mr Stewart and his father on numerous occasions to buy Lot 1, but in response was told that he would be given the first option if it was decided to sell the property.

27. Then, in pars 22 and 25, Mr Lewis made the following allegations:

22.   However, in mid-2003, the defendant stated to the plaintiff that he put it in his will that Lot 1 is left to the plaintiff as the plaintiff had kept his word about cleaning up the property, and for all the work the plaintiff had done on Lots 1 and 2 and at the river bank, and for work to the Lots which would continue to be carried out by the plaintiff.

…

25.   The defendant confirmed over time until at least 2011 that the defendant still had the plaintiff in his will as earlier stated to the plaintiff and the defendant has never directly or indirectly informed the plaintiff that the plaintiff was no longer included in his will.

28. Mr Lewis then referred to the fact that Mr Stewart suffered a stroke in 2014, and that his tutor in these proceedings apparently holds a power of attorney from her brother. He alleged in par 27 that in August to October 2015, Ms Mayhew took steps to evict Mr Lewis and demanded that Mr Lewis remove his belongings from the property.

29. Mr Stewart alleged in pars 32 to 34:

32.   The defendant at all material times benefited, accepted or acquiesced in the carrying out of the work referred to knowing that the work was not being rendered gratuitously but that the plaintiff had carried out the work because the defendant had stated that Lot 1 will be left to the plaintiff in his will.

33.   In expectation that he is included or would be included in the will as aforementioned, the plaintiff did the said work, provided materials and incurred expenses that he otherwise would not have provided. The plaintiff would not have so dedicated his time and resources and would have applied them differently for the plaintiff's benefit.

34.   At all material times the defendant knew or intended the plaintiff to do the work, provide the materials and incur the expenses on the said basis of the will.

30. Finally, in par 36, Mr Lewis alleged that it would be unconscionable for Mr Stewart to keep the benefit of his work without paying Mr Lewis a reasonable sum in return if Mr Lewis was denied an interest in Lot 1, and he claimed a reasonable remuneration upon a quantum meruit.

31. It may be noted that, even though in his pleading Mr Lewis alleged that he was encouraged to carry out works by Mr Stewart having made statements about leaving Lot 1 to Mr Lewis in Mr Stewart's will, no specific relief was included in the prayers for relief on that basis.

32. Mr Lewis has occupied Lot 1 for the whole of the period since the mid-1990s. He claimed that he paid rent up to 2003. He has continued to occupy the property after that time, with the apparent agreement or acquiescence of Mr Stewart, at least until Ms Mayhew took steps to terminate his right of occupation. However, apart from pleading that the work that he carried out on the property was done with the agreement or acquiescence of Mr Stewart, the only promise that he has pleaded is a promise by Mr Stewart to leave Lot 1 to Mr Lewis in Mr Stewart’s will. As will be seen, it is significant that Mr Lewis has not claimed that Mr Stewart gave Mr Lewis any current interest in Lot 1 that was more extensive than a lease (so long as a lease may have continued), or some license to occupy the property. In particular, Mr Stewart has not alleged that he was given an interest in Lot 1 that would entitle Mr Lewis to carry out works on the property that would change its physical nature without Mr Stewart’s request. Put more directly, Mr Lewis has not claimed in his amended statement of claim that he was given an interest in Lot 1 that entitled him to treat the property as his own, before he received the title to Lot 1 by means of the execution of the will promised by Mr Stewart.

Mr Stewart’s defence

33. Mr Stewart's defence was filed on 14 September 2016, immediately after Ms Mayhew consented to act as his tutor. As Mr Stewart suffered his stroke before the commencement of these proceedings, the conduct of his defence by Ms Mayhew has obviously been inhibited by the fact that Mr Stewart is incapable of giving proper instructions to respond in detail to the factual allegations made. This fact is reflected in the terms of the defence. Although some admissions are made concerning a number of relatively uncontroversial allegations, many of the responses take the form that Mr Stewart does not know and cannot admit particular allegations of fact. That includes the allegation in par 14 of the amended statement of claim concerning the works carried out by Mr Lewis.

34. In response to pars 32 and 34 of the amended statement of claim concerning the allegation that Mr Stewart assured Mr Lewis that he would leave Lot 1 to Mr Lewis in Mr Stewart's will, Mr Stewart has pleaded that he does not know and cannot admit the allegations, and added that "he is alive and the time for administration of his will has not yet arrived. The Defendant or the Defendant's Attorney on his behalf is entitled to deal with the Defendant's assets to provide for his care during his lifetime" (see pars 24 and 26).

35. Ms Mayhew also pleads on behalf of Mr Stewart that Mr Lewis has not provided an account of Mr Lewis' alleged expenditures said to have been undertaken in relation to the land (pars 27 and 28).

36. Ms Mayhew on behalf of Mr Stewart then in par 29 has pleaded the following matters in answer to the whole of the amended statement of claim:

a.   The plaintiff has occupied and used the land for commercial purposes from time to time and in a number of different capacities including as a tenant, as a business operator and/or as the director of a company in circumstances where the Plaintiff was obliged by his commercial use of the land to remediate the land;

b. The Plaintiff's claim does not comply with sections 23C and 23D of the Conveyancing Act 1919;

c.   The Plaintiff's claim is premature in circumstances where the Plaintiff claims the enforcement of an alleged testamentary contract in a will and the time for execution of that will has not arrived;

d. The Plaintiff's claim is premature in circumstances where the Attorney is under a duty to manage the Defendant's assets for the Defendant's benefit, noting the provisions of the Powers of Attorney Act 2003.

37. I have acknowledged the difficulties that Ms Mayhew faced in pleading a positive defence to Mr Lewis’ claim. However, in a formal sense Mr Stewart did not plead an alternative claim whereby he alleged that, if he had indeed encouraged Mr Lewis to carry out works on the property by either promising to leave Lot 1 to Mr Lewis in his will, or by telling Mr Lewis that he had made a will to that effect, the implementation of any promise to leave Lot 1 to Mr Lewis was contingent on Mr Lewis only dealing with the property in a manner approved of by Mr Stewart during Mr Stewart’s lifetime. That is, Mr Stewart did not plead an alternative claim that Mr Lewis either lost his right to expect Lot 1 to be left to him in Mr Stewart’s will, or that Mr Lewis’ expectation was in some other way contingent on the manner in which he dealt with the parts of the two lots that he occupied. As I understand the way Mr Stewart’s case was conducted, it was in substance to deny that Mr Stewart ever made the promises or representations alleged by Mr Lewis. Mr Stewart did not in any substantial way prosecute a case that acknowledged that Mr Lewis had carried out considerable works with the encouragement of Mr Stewart by means of promises that Lot 1 would be left to Mr Lewis in his will, but that promise was contingent on some basis and by reason of Mr Lewis’ failure to meet the contingency, it was no longer unconscionable for Mr Stewart to refuse to leave Lot 1 to Mr Lewis.

Mr Lewis’ application for leave to amend

38. On 4 September 2017, the proceedings were set down for hearing before me with 2 days allotted to the hearing. At the hearing, Mr IR Coleman SC appeared with Ms LM Clarke for Mr Lewis, and Ms MM Pringle appeared for Mr Stewart.

39. In par 2 of his written outline of submissions provided to the Court before the hearing in compliance with the Usual Order for Hearing, Mr Lewis set out a claim for the following relief:

The plaintiff seeks:

a.   A declaration that the plaintiff and the defendant entered into an oral contract in 2003 ("the contract"), an essential term of which was that, in consideration of the plaintiff continuing to clean up and remediate the land of the defendant known as and situate at Lots 1 and 2,… the defendant would leave Lot 1 to the plaintiff in his Will ("the will");

b.   A declaration that the plaintiff performed the contract until the defendant prevented him from further doing so in October 2015;

c.   A declaration that the defendant repudiated the contract by failing to execute the will prior to the defendant ceasing to have the capacity to execute the will , and by intending to sell Lot 1;

d.   A declaration that, in the circumstances, the plaintiff is entitled to damages for breach of the contract;

e.   In the alternative to the declarations sought above, the plaintiff seeks a declaration that, in 2003, and subsequently, the defendant promised the plaintiff that he would leave Lot 1 to the plaintiff by will if the plaintiff continued to clean up and remediate Lots 1 and 2;

f.   A declaration that, in reliance upon the defendant's promises, the plaintiff continued to clean up and remediate Lots 1 and 2, until the defendant denied the plaintiff access to the land in October 2015;

g.   A declaration that the plaintiff would suffer detriment if the defendant were permitted to depart from the promises made to the plaintiff, and/or the assumptions held by the plaintiff;

h.   A declaration that, in the circumstances pleaded above, the testamentary promises made by the defendant are enforceable through estoppel by encouragement;

i.   A declaration that, in the circumstances pleaded above, the plaintiff has an equitable estate or interest in Lot 1, or is entitled to equitable compensation;

j.   An order that the plaintiff's damages be determined by the Court upon completion of the sale of Lot's 1 and 2 or either of them;

k.   In the alternative to the orders sought in j above, an order that the quantum of the plaintiff's equitable interest in the proceeds of sale of Lot 1, or the quantum of equitable compensation payable to the plaintiff be determined by the Court upon completion of the sale of Lots 1 and 2 or either of them;

l.   An order that, pending compliance with order l or j hereof, the defendant be restrained from alienating or disposing of the proceeds of sale of Lot 1 or Lot 2;

m.   Costs.

40. At the beginning of the hearing, Mr Lewis applied for leave to further amend his amended statement of claim, to replace his prayers for relief by a claim for the orders contained in par 2 of his written outline. That application was made on the basis that Mr Lewis would solely rely upon the allegations of fact already made in the amended statement of claim.

41. The application for leave to amend occupied some time on the morning of the first day of the hearing, and after some discussion as to whether in reality Mr Lewis was seeking to rely upon some additional allegations of fact, Mr Lewis on the morning of the second day of the hearing produced a draft further amended statement of claim (which became MFI 1).

42. The draft further amended statement of claim contained the same allegations of fact in the pleadings and particulars as were contained in the amended statement of claim. However, the prayers for relief in par 2 of the written outline were substituted for the prayers for relief in the amended statement of claim.

43. The only further change was that the following particulars were inserted under prayer 3 of the claim for relief, being the declaration that Mr Stewart repudiated the contract by failing to execute the will prior to his ceasing to have the capacity to do so, and by intending to sell Lot 1:

Particulars

a.   The defendant repudiated the contract on or about 31 March 2014 on which state the defendant executed a will which failed to leave Lot 1 to the plaintiff;

b.   Between 31 March 2014 and the date upon which the deceased ceased to have the capacity to execute a will leaving Lot 1 to the plaintiff he failed to execute such will;

c.   The defendant is unable through lack of testamentary capacity to execute a will leaving Lot 1 to the plaintiff.

44. It is an unorthodox approach for factual particulars of a claim to a declaration to be included in the prayers for relief, rather than for appropriate allegations of fact to be included in the factual pleading.

45. Two subsidiary consequences of Mr Lewis’ application to amend his statement of claim must be noticed. First, he has abandoned his alternative claim for the payment of reasonable remuneration on the basis of a quantum meruit. Secondly, although he continues to claim a declaration that he has an equitable estate or interest in Lot 1, he does not seek any order preventing Ms Mayhew, as Mr Stewart’s attorney, from selling Lot 1. Instead, he seeks by prayer 12 an order that Mr Stewart be restrained from alienating or disposing of the proceeds of sale of Lot 1 or Lot 2 until the amount of the damages or the quantum of his equitable interest in the proceeds of sale of Lot 1, or the equitable compensation payable to him, has been determined by the Court.

46. I will grant to Mr Lewis the leave that he seeks to further amend his statement of claim. He has not, in any significant way, sought to rely upon any additional evidence to which Mr Stewart could not adequately respond. The thrust of the amendment is to elaborate Mr Lewis' claim based upon the alleged agreement by Mr Stewart to leave Lot 1 to Mr Lewis in his will. The basis of that claim was first raised by Mr Lewis in his further amended summons filed on 19 May 2016. The claim was repeated in pars 22 and 25 of the amended statement of claim filed on 19 August 2016. It appears, as I have noted above, that even though Mr Lewis pleaded that Mr Stewart agreed to leave Lot 1 to Mr Lewis in his will, there was an omission to make a specific claim for relief on that basis. Ms Mayhew appears to have understood that the issue remained live in the proceedings, as in par 29 of the defence she filed on behalf of Mr Stewart she pleaded that Mr Lewis' claim was premature in so far as he sought the enforcement of a testamentary contract, as the time for the execution of any will made by Mr Stewart has not arrived.

47. I am satisfied in the circumstances that Mr Lewis' application to amend should be regarded as a refinement of his existing claims, rather than the belated introduction of a new claim.

48. Because only two days had been allotted for the hearing, and both parties were anxious for at least the evidence to be completed in the allotted time, the Court did not hear full argument, and did not rule on the application by Mr Lewis to further amend his amended statement of claim. The parties were content to proceed with the hearing on the basis that the Court would reserve its decision on the application for leave, and the parties would deal with the possibility that leave would be granted as best they could.

49. That is obviously not an optimal approach, either from the perspective of the Court or the parties. It was adopted in the present case by agreement, as I understand it, because of a strong appreciation of the desirability of legal costs being curtailed.

50. As it has happened, the remaining hearing time only allowed the parties to complete the tender of the necessary evidence and the cross-examination of witnesses who were sought to be cross-examined. There was no time for the parties to make their submissions to the Court.

51. The parties joined in asking the Court to receive written submissions in lieu of the Court having any opportunity to hear from the parties orally. I acceded to that course, although I reserved the right to call for further oral submissions if I came to the view that the parties' written submissions did not provide adequate assistance to the Court on all of the issues that required decision.

Evidence of Mr Lewis

52. Mr Lewis relied upon affidavits sworn by him on 19 May 2016, 28 November 2016, and two affidavits sworn on 18 September 2017. He also relied upon an affidavit of his brother, Steven Lewis, affirmed on 16 November 2016.

53. Mr Lewis was born on 7 September 1963. He has been in the drag-lining and dredging industry since the age of 15.

54. In about 1980, Mr Lewis' father began leasing Lot 1. The father was a river miner and mined the Hawkesbury and Nepean Rivers at different locations for sand, soil and gravel.

55. Mr Lewis' father and two colleagues started a company called Whatley Sands Pty Ltd. Whatley Sands leased Lot 1 off Mr Stewart's father and his Uncle Ronny.

56. Mr Lewis started working for Whatley Sands about 6 months after it started mining the Hawkesbury River below Lot 1, and he has been associated with the property ever since.

57. During this period, Lot 2 comprised a 40 to 50 acre farm. The farm included an old active orange orchard and vegetable farm operated by Mr Stewart's father and his Uncle Ronny.

58. Lot 1 was the area where sand, soil, gravel, and stock were piled, stored and processed over a number of decades for sand mining purposes. Storage on Lot 1 included front-end loaders, drag lines, trucks, excavators, sand soil screening plants, pumps, steel shipping containers for storage, site sheds and other plant and equipment.

59. Whatley Sands ceased mining operations in the mid-1990s, and Lot 1 became simply a storage block for all of Whatley Sands' equipment.

60. After Whatley Sands relocated away from Lot 1, Mr Lewis started a company with an old work colleague. Its business was owning and operating drag lines. Mr Lewis said that he took over the lease of Lot 1 and paid $2000 per annum rental. He also leased part of Lot 2.

61. Mr Lewis said in par 12 of his 19 May 2016 affidavit that, in about 1998, he commenced a cleanup of Lots 1 and 2 with the acknowledgement and agreement of Mr Stewart and his father to return them to their original condition as a farm, and to clean up and repair damage to the access haul road into Lots 1 and 2 and to the river. Mr Lewis said that he kept Mr Stewart and his father up to date with what he was doing, until Mr Stewart's father died in 2000.

62. Mr Lewis claimed that he had a very strong friendship with Mr Stewart, and described the relationship as being one of best mates, particularly in the period 2001 to 2003.

63. In par 15 of his 19 May 2016 affidavit, Mr Lewis described the work that he carried out up to 2003 in the following way:

From 2000 until 2003, I had cleared up Lot 1, cleaned up the river bank of Lots 1 and 2, cleaned-up the rubbish tip which started on the edge of Lot 1 and extended down to the river flat, cleaned up both sides of the access haul road from Lot 1 to the river. The work included earth works, removal of old mining waste, old cars, old trucks, rollers, old plant, old rusted steel, old conveyor belts, and many other objects and material. The river bank had become a dumping ground and tip running all the way from Lot 1 to the river flat. I paid for a fencing contractor and surveying. I funded or caused to be funded through my company, Australian Dragline Services Pty Ltd all the works carried out on both lots and the river bank. I used my equipment and my company's equipment and personally carried out thousands of hours of work over just the said three years.

64. Mr Lewis said that during the period 1998 to 2003, he offered to Mr Stewart and his father, and later just Mr Stewart, on numerous occasions to buy Lot 1. The response was always that Mr Lewis would be given the first option if it was decided to sell the property.

65. In his 28 November 2016 affidavit, Mr Lewis elaborated on his friendship with Mr Stewart. He said that Mr Stewart attended his wedding in 2003. They had many barbecues on Lot 1. This continued until about 2011. Mr Lewis also often went to Mr Stewart's home at Richmond. Mr Lewis would have takeaway with Mr Stewart and his mother. Mr Lewis and Mr Stewart would talk for hours at a time as they shared many of the same interests. Mr Lewis said in par 14: "We enjoyed each other's company and we had many late nights at William's place. The same on Lot 1. William would arrive and I would down tools and we would start on our long conversations of similar sort".

66. Mr Lewis said that during these conversations he kept Mr Stewart up to date regarding the work that was being done on Lot 1 and Lot 2.

67. As will be seen, it is significant that Mr Lewis’ evidence was to the effect that his relatively close personal relationship with Mr Stewart continued until about 2011. There was no evidence that in any positive way the relationship between Mr Lewis and Mr Stewart foundered. When I deal with Ms Mayhew’s evidence, it will be seen that she said that Mr Stewart suffered a relatively long period of serious ill-health before he suffered the stroke that incapacitated him. The evidence is not precise as to timing. It is broadly likely that, if the relationship between Mr Lewis and Mr Stewart did not continue in its earlier vein, that was in some way connected with Mr Stewart’s declining health. The point of these observations is that the evidence is unclear as to whether Mr Stewart’s direct personal involvement in and approval of the works undertaken by Mr Lewis on Lot 1 continued after the onset of Mr Stewart’s ill-health.

68. In par 19 of his 28 November 2016 affidavit, Mr Lewis elaborated in some detail each of the categories of work done on Lot 1 and Lot 2, as set out in par 14 of Mr Lewis' amended statement of claim. This evidence was set out in about nine pages of the affidavit. It will not be convenient to repeat it here. It will be sufficient to say that, although the evidence was related from memory, it was quite detailed in relation to the specific types of work undertaken, and how Mr Lewis carried out the work. For example, in elaboration of the allegation at sub-par (a), Mr Lewis said:

(a) I personally cut up old steel pipes, wire ropes, steel cables, steel screen mats, rusted and rusty steel plates, truck bodies, axles, truck springs, industrial compressors and mobile beds, steel boots and hoppers, sand washing plant and bins, old steel conveyor frames, and disposed of same.

It ultimately took about 16 years part-time work. I did the work as I could afford to do it and had the time. I did this work on and off all through from 1998 till 2014. I used oxi/acetylene the largest size G bottles and my own cutting torches and tools. I cut all the steel and bits of plant (old hoppers, conveyor belt frames, car bodies, old boilers, old carts, and other) (sic) to man-handleable sizes, had 12m scrap bins delivered from One Steel Recycling Wetherill Park to Lot 1 and filled them up with scrap steel and organised a scrap merchant to cut up and take scrap steel away. I used the drag-line rigged as crane to lift and load. I put in about 340 tonne of scrap steel during this period. Each bin involved about 20 tonnes of scrap steel. I did about seventeen bins all up. All up I used about 30-35 bottles. The cost was per bottle, $30 at cost to me and to the public $130, this price being stable between 1998-2004 and not having fluctuated too much. I personally would travel from Wilton, Albion Park, and Bateau Bay over a 12 to 13 year period and removed all the rubbish. I picked up by hand (with family members) all the small pieces of steel over the years as well is paying people to pick up scrap, bolts, pins, etc.

69. Mr Lewis gave evidence in a similar vein for all of the other sub-paragraphs of par 14 of his amended statement of claim.

70. Mr Lewis’ evidence did not clearly distinguish the remediation and cleanup work that he claims to have done on Lots 1 and 2 before and after he claims Mr Stewart informed him in 2003 (and subsequently repeated) that he would leave Lot 1 to Mr Lewis in his will. Work carried out by Mr Lewis before any representation was made to him concerning the contents of Mr Stewart’s will could not be relied upon to support any estoppel by encouragement case mounted by Mr Lewis. No attempt was made at the hearing (by Mr Lewis or on behalf of Mr Stewart) to separately identify the work done by Mr Lewis after he was first told about the gift to be made to him in Mr Stewart’s will.

71. As mentioned above, Mr Lewis described the work that he claims to have done more elaborately in sub-pars (a) to (w) of par 19 of his 28 November 2016 affidavit. In many, but not all, of the sub-paragraphs Mr Lewis set out the timespan over which he claims to have done the work the subject of the particular sub-paragraph. Relevantly he gave a timespan for the following: (a) “1998 till 2014”; (b) “between 2000 until 2009”; (c) “from 2001 to 2010”; (d) “started around April 1998 and was close to being finished in late 2013”; (f) “this took place over the years from 1990 till the latter part of 2013”; (g) “timeframe was sporadic from April 1998 to the end of 2014”; (j) “during 2007, 2008, 2009, 2010, 2011 and 2012”; (l) “on and off till 2006, and then commenced more major earthworks when I brought in road base in about 2010 onwards”; (o) “in 2008” and “during a period from 12 November 2012 until 1 September 2013”; (r) “at least eight times from 2006 to the end of 2013”. (As I understand it, Mr Lewis did not in all cases claim that he worked uniformly over the period on a particular category of work, or that he spent the whole of his available working time doing so. While Mr Lewis claimed that the work that he did was substantial, and beneficial to Lots 1 and 2, the tenor of his evidence was that he did the work when he had the time to do so, and kept Mr Stewart informed about what was happening).

72. Mr Stewart did not specifically take issue with the evidence given by Mr Stewart as to the time period over which he claimed to have carried out particular types of work. (Mr Stewart challenged Mr Lewis’ evidence in a different way, which I will consider below). For present purposes, it is sufficient to note that if ultimately the Court is satisfied that Mr Lewis in substance carried out the work claimed by him, a finding is justified that a substantial amount of that work was undertaken after Mr Lewis first learned that Mr Stewart would leave Lot 1 to him in his will in recompense for the work being done.

73. It must be noted that, according to Mr Lewis, some of the work that he carried out on the property was done after 2011.

74. During this period Mr Lewis was a dragline dredging contractor. The company supplied its services to larger organisations. Mr Lewis said that he used his company's funds and his own funds for all of the works on the farm, and he used his company's equipment and his own equipment. He used crawler cranes, a 22 Ruston Bucyrus long reach cable operated excavator and crane rigged for dragline operation, which he owned at the time. That was how he carried out the earthworks and moved stockpiles of tailings off Lot 2 onto Lot 1, where he created a mound.

75. Mr Lewis said:

22. I personally operated the dragline involving at least a thousand hours each year and more, for example, stripping off contaminated soil, digging large holes, placing the clean soil on top and burying the contaminated soil at least 2 metres below the surface and spreading and levelling the clean soil and compacting the soil.

23. I personally carried out thousands of hours of work over the years. I paid for the fencing contractor and surveying of the northern boundary of Lot 1 through my company Australian Dragline Services Pty Ltd and half of the surveying of the southern and eastern boundary.

24. My brother Stephen help me to whom I made payments, and had unpaid help from my wife and children.

76. Mr Lewis related the circumstances in which he asked from time to time if he could buy Lot 1, and was told that he would be given first option if it was decided to sell the property.

77. Mr Lewis then gave the following evidence in par 34 of his 28 November 2016 affidavit:

34. I refer to paragraph 17 of my first affidavit. More specifically, it was winter – end of July or beginning of August 2003. William and I were at the farm at the time and before lunch, I asked him again would he consider selling Lot 1 to me. I said: "William, will you really consider, really think about selling me the two acres. I want to clean all the property up, build a shed, deck half of it out so that we can live in it, and then build a house and eventually, hopefully, get back into the Hawkesbury River doing river mining". William said: "That would be an absolutely great place to rare (sic) children and it’s a gold mine". I said: "Yep, I agree". I then spoke in more detail about what I was thinking. This was part of William and I talking all day and having a BBQ. William continued: "Kevin, I’m not selling you the 2 acres, I’m leaving you the 2 acres in my will for all the work, effort and time you’ve put into the property cleaning up and keeping your word". The latter was reference to my telling William and his father that I would help clean up lots 1 and 2 and the river bank after Whatley Sands had left everything behind. I said: "William, I can’t accept that. I would like to buy Lot 1". William said: "I won’t have that at all. No way, I mean what I said, I’m just like my father and my word is my bond. It’s very important to me that you trust me". I said: "Thank you, I believe you and trust you but you need the money too, you could build the new shed on Lot 2 like you have always wanted". He said: "I don’t need any more money, I’m right for the rest of my life and have plenty of money and I’m paying forty-nine cents in the dollar tax. When I die the two acres goes to you. In the meantime, you can do whatever you like here, build your shed". I agreed and was grateful, happy and excited. William was very happy and grateful and also thanked Kelly (my girlfriend at the time; we were about to get married in a couple of months) and I for the money I had spent, the man hours, labour effort and work we have done in the last couple of years cleaning up Lots 1 and 2. He also said: "It was’nt your responsibility to clean up both the properties and honour our fathers' agreement. It’s so important you trust and believe in my word just as you had kept your word to me and my father that you would clean up the property as you had." Although Kelly was generally present. She did not participate in any conversations or stand-by and listen in.

78. In oral evidence in chief, Mr Lewis supplemented this evidence as follows (T 40.31-41.25):

Q. See paragraph 34 of that affidavit.

A. Yes.

Q. If you agree within that short time ago when you--

A. Yes.

Q. --were outside the Court. Now, you then sought to say that William repeated these remarks on the on the day and on subsequent occasions. Now, did he say anything about a rule after that conversation in 2003 to you?

A. Yes.

Q. To the best of your recollection on how many occasions after that date did he say something to you about a will after August 2003?

A. About a dozen times.

Q. And over what period of months or years do you say that occurred?

A. Right up until about 2010 over the years.

Q. Where did these conversations occur?

A. At William's place, at his home and on lot 1, and also over at his shed, his farm shed.

Q. Do the best of your recollection on these occasions when referring to a will, what did Mr Stewart say to you, to the best of your recollection?

A. Earlier on from 2003 he said that he was going to put it in the will. As the years ticked by he said that he put it in the will, that it was actually lodged in the will, it was part of the will, he'd done it.

Q. Do you have any recollection of anything else that he said to you then or that you said to him in the course of those conversations, anything else you recall of those subsequent conversations?

A. Even though he said that he put it in the will, I still kept asking would he sell it to me, like still offered to pay for it.

Q. What did he say when you said that?

A. He wouldn’t have it.

Q. What did he say?

A. He said no. “No, Kevin.” He said, “That’s for all you’ve done, all the work you’ve done, the cleaning up and keeping your word and keeping your word with my father and I”, which is William, “and all the effort and time you’ve made in cleaning the properties up”.

Q. Anything else?

A. Not that I can recall right at this moment because I’m nervous.

79. Mr Lewis' case was that, on the basis of this assurance, he continued to undertake the works described in par 19 of his affidavit up until the end of 2014.

80. Again, it must be noted that Mr Lewis said Mr Stewart repeated the assurances that he gave concerning leaving Lot 1 to Mr Lewis “until about 2010”.

81. Mr Lewis annexed to his affidavit what he described as "a schedule of costs I have prepared in connection with the above work". He said in par 40 of his affidavit that there was additional work and he had not yet calculated the figures for that work. Objection was made to the form of the schedule, and eventually a redacted version of it (which I understand was the result of consultation between counsel for the parties) was tendered without objection and became Exhibit B.

82. The schedule contained a costing for work totalling $775,994.

83. It will be sufficient to set out a sample of the entries in the schedule ("RB" means riverbank and "HR" means haul road). The sample entries that have been struck out are entries which were in the original schedule but have been deleted from Exhibit B. The entries that have been struck out have not been received into evidence, but I have included them to give an idea of the content of the document originally prepared by Mr Lewis.:

RB & HR, Tip, River Flat, 22 RB LW Dragline at $135 per Hour 450 hours in total hours, 9 weeks = $60,750.

…

Total machine hours worked 2870 hours = 318 days in total worked Travelling time per day 3 hours at $40 per hour = $120 per day times 59 weeks @ a 9 hour day on average on 318 days worked +3 hours a day travelling to and from the Central Coast to Agnes Banks. 318 times $120 = $38,160.

Removal of site of loader, truck, car, tires, Conveyor rubber belts, Transport costs 18 loads times $490 A load = $8820.

Tipping fee, S $250 A load at 18 loads = $4500.

Joe Lewis, Green and White Transport. Semi-Trailer, Truck and Dog, Low Loaderhire, Scrap transported to Steel Mill = $13,834.

…

44 weeks hire Volvo Tipper unregistered on-site 24/7 = $110,000.

Labourer, S operating water cart, truck load inspection,s, security of site, Helping KJL working on site 10 hour day $250 6 days = $79,500.

Green and White transport delivering road bas to Lot 1, 214 Yarramundi Lane, Agnes Banks, NSW, Consisting of 3 types of Road Bas used being of = shale, clay, sandstone. 1 load is 1 bin, 1 Truck & dog = 2 bins. Each bin costs $150 per bin. Total amount of bins = 1037 at $150 per bin = $155,550.

…

84. As it appeared from responses given by Mr Lewis in cross-examination, the schedule that he prepared was not intended to reflect actual costs incurred by him, but was his attempt to reconstruct what it would have cost to do all of the work if it had been undertaken by external contractors at commercial rates and costs. It became obvious that the exercise undertaken by Mr Lewis was not a very sophisticated or accurate one.

85. During the hearing, Mr Lewis was cross-examined at some length. A number of observations should be made to put Mr Lewis’ responses to the questions that he was asked in proper context.

86. The following exchange occurred at T 70.8-70.27:

Q. You have had the help of pro bono lawyers to do this, haven't you?

A. Yes, ma'am. I'm very slow. I'm - I'm a slow person. I'm very slow at writing. I'm very slow on the computer and I make a lot of mistakes. It's been very difficult for me to put all of this together. I've done the best I possibly can. I'm not a good writer, like, I can't write very well. And I can't read very well. I left school at 15, your Honour, and I went into the workforce. I've done the best I possibly can and I don't want to get upset, but I've had some things happen in the last two years - my mother died last month on my 25th and I recovered from a fall of 6 metres that put me in hospital. It's taken me over a year to get over it.

I broke three ribs and punctured my lung and I've put on weight and I've got other health issues to go with it. I apologise that I haven't explained myself; it is difficult for me. I've done the best I can. What you see is what's there. But I haven't tried to hide anything; everything's there that I've got. I'm not an educated man and I'm - I'm as honest as I can be, your Honour. I've got nothing to hide. I'm just an Australian battler.

Q. You just told his Honour that you are honest.

A. Yes, I believe I - I guess I'm an honest man.

87. The question put to Mr Lewis about his having the help of pro bono lawyers confirmed a suspicion that I had about the manner in which Mr Lewis’ case had been prepared. As I have explained above, he started the proceedings himself with documents that he drew. A time came when Mr Lewis had the assistance of a solicitor, and his pleadings and affidavits exhibit the benefit of that assistance. However, there have been aspects of Mr Lewis’ case that appeared to have been largely his own work. A good example is the schedule of the costs of the remediation work that he claims to have done that is annexed to his 28 November 2016 affidavit.

88. It appeared, if I may say so with great respect to counsel who appeared for Mr Lewis at the hearing, that to some extent they were required to make do with the materials that they had, and also to make adjustments so that they could present Mr Lewis’ case in the most professional way possible. In many respects, Mr Lewis’ case was not fully developed, and I formed the view, correctly as it now seems from the first question put to Mr Lewis that is extracted above, that these shortcomings did not reflect any lack of diligence on the part of counsel, but rather were beyond correction notwithstanding the honourable course taken by counsel in volunteering their services to Mr Lewis to ensure that he could prosecute his case as fully as the circumstances may permit.

89. Many times during his cross-examination, Mr Lewis was forced to admit, which he did in my view readily and candidly, that he had given some evidence in response to a question that he had not already included in detail in his affidavits. In my experience, that is not an uncommon occurrence, particularly in cases where unsophisticated witnesses have largely been responsible for preparing their own affidavits. The reality is that the witness, while remembering the substance of the events that are being related, does not see those events in the analytical way that they are viewed by experienced counsel. The response of such witnesses to detailed questions put by counsel is as if the witness’ memory has been unlocked, and detailed answers are given, often going further than what is strictly responsive to the questions, as the witness proceeds upon the assumption that the Court wants to know what actually happened, without the witness being sensitive to the need for precise responses to be given to specific questions.

90. I did not form the impression, in listening to the way that Mr Lewis gave his evidence, that he was making up that evidence wherever he gave detailed responses that were not already included in his affidavits. Rather, the affidavits were in many respects generally stated, and the effect of counsel’s probing questions was to prompt Mr Lewis to recall and to express details that he had not originally thought to include in his affidavits.

91. With due respect to Mr Lewis, I formed the opinion when listening to his evidence that his description of his own abilities was accurate and unvarnished. He laboured in the way that he gave his evidence, but that was consistent with his true abilities. I am satisfied that he did his best to give proper and truthful answers to the questions put to him, and readily faced up to a number of events in his life that did not cast him in an attractive light.

92. It was put to Mr Lewis based upon a police record dated 20 September 2006, that a complaint had been made against him that he had verbally abused a person who asked him for money (T 52.40). There was some uncertainty about whether Mr Lewis worked for the person or it was the other way round. Mr Lewis did not accept the detail of the facts, and said that he was unaware of the complaint. Mr Lewis accepted that on 6 April 2008 he had been stopped by a highway patrol officer when driving a vehicle that was found to have two different numberplates on the back and on the front (T 71.13). The number plates belonged to different vehicles and had expired. Mr Lewis was driving without a licence. Mr Lewis was fined and did not pay the fines in accordance with their terms as he was bankrupt. He accepted that the use of the number plates was “calculated to deceive” (T 71.16). Mr Lewis was not given the opportunity to explain himself but said that he acted “out of desperation” (T 72.15). Mr Lewis accepted that he did not have a good relationship with the ATO, because when his company was put into liquidation it owed a $60,000 debt for tax (T 78.10). Mr Lewis accepted that he told his insolvency trustee that his drag lines were just scrap (T 78.48). This statement was not shown to be false. Mr Lewis acknowledged that he had access to usable equipment, but claimed that the equipment belonged to his wife (T 83.30). Mr Lewis accepted that in 2007 he was directed by the Hawkesbury City Council to do cleanup work on the property. Mr Lewis acknowledged that in 2012 he was issued by what was described as the Office of Water with a penalty for work done on the land. Mr Lewis claimed that he was fined $750 for not making an application for a permit for works that he carried out (T 86.40). He admitted that at the time of giving evidence he had fines outstanding of $1500 (T 86.48). There was an unexplained problem in February 2014, because of the absence of something called a “Controlled Activity Application”, which apparently led to a fine but the issue was “resolved” (T 87.25). Mr Lewis accepted that he was charged with intimidation and pleaded guilty on 11 April 2014, in relation to events on 2 and 11 April 2013. The following cross-examination occurred on this issue (T 89.10-90.23):

Q. Who is Gary Collins?

A. Gary Collins was, if he is still not, he was the council ranger that I’d been dealing with for close to a decade down on the farm. Hawkesbury city council ranger.

Q. He’s the person that you were charged with stalking and intimidating, isn’t it?

A. I never stalked Gary Collins.

Q. That’s not the question, Mr Lewis. He’s the person that you were charged with stalking and intimidating, isn’t he?

A. I don’t’ believe that’s right, madam. I was charged with intimidation, not stalking.

Q. If you go to folder 1 page 240, in the middle of the page you will see an entry there for a court date. When’s the local court? 11 April 2014. Offence date, 11 April 2013 and 2 April 2013. Stalk, intimidate, intend fear of physical harm et cetera. Correct?

A. Does that mean there’s two dates there? There was only one date that I had an argument with him. Does that mean two dates because there’s two dates there?

Q. There’s two dates there.

A. I’m not aware of the 2nd of the 4th 2013. I am aware and yes I had an argument on the phone with Gary Collins and it became quite heated from what he said to me and yes, I was charged and convicted and pleaded guilty to it. From memory I was put on a 12 month bond. I yelled at Gary Collins on the phone because he called me a liar over the office of water.

Q. Over sorry?

A. The office of water. He claimed that I never had any paperwork and I had no permission to do what I was doing or instructions, like there was no instructions by the office of water because they’d contacted the Penrith office that had absolutely nothing to do with it. It was Queanbeyan and I got heated and yes, I’m ashamed of what I done. It was wrong what I done. I snapped and I yelled and yelled at him and he was laughing at me and I got very worked up about it.

Q. In fact

A. And I regret it.

Q. Thank you. You finished?

A. Yes, ma’am.

Q. In fact, the police report appears at page 254 of that folder.

A. Yes. I’ll need to read this. It’s the bottom half or top half?

Q. It is the bottom half. It has nothing to do with the office of water, does it?

A. I disputed at the time all, some of these details, what went on. I can't remember exactly what went on but there was some sorting out by the prosecutor and my solicitor and I was found guilty or pleaded guilty and I got the bond now. Word for word what he's got there isn't right. There weren't things that, things he said I disputed at the time but I've pleaded guilty to yelling at him and, but I never stalked him or rang him or done anything to him or hurt him or touched him.

Q. But you threatened his life.

A. No, I didn’t. That's one of the things. I never threatened his life. I didn’t threaten to kill him and I had a witness there as well..(not transcribable)..

Q. Because he stopped the trucks containing landfill coming onto the property, didn’t he?

A. He did, yes.

93. Mr Lewis accepted that he was found guilty by a magistrate of what was described as a “road rage incident” that occurred on 2 August 2014, in which he punched someone (T 104.50). Mr Lewis was found guilty of assault. Mr Lewis began to explain that he was surrounded by a group of people that stopped him from driving, but was not permitted to complete his explanation.

94. All of these matters put Mr Lewis’ character in a bad light, but I do not accept that they discredit him to the extent that the Court should reject the evidence given by Mr Lewis on the basis that he is entirely uncreditworthy.

95. The approach that Mr Stewart took to responding to Mr Lewis’s evidence about the amount of the cleanup and remediation work that he did on Lots 1 and 2 was to rely primarily upon the evidence of a registered surveyor, Mr Daniel Fitzhenry, who inspected the properties on 19 August 2016, and prepared a report of his observations and conclusions concerning the work that may have been done on the properties. I will consider this evidence below. It will be seen that Mr Fitzhenry’s evidence was primarily based on a ‘snapshot’ of the properties about 12 months after Ms Mayhew tried to evict Mr Lewis.

96. Mr Lewis was cross-examined about some of the photographs contained in Mr Fitzhenry’s report concerning his inspection of Lots 1 and 2 on 19 August 2016 (T 93.1-97.16). The following are the most significant aspects of that evidence:

Q. … Have you seen a copy of the surveyor's report which was handed up to his Honour yesterday?

A. I don't recall.

Q. If you turn to page 6 of that document you can see a coloured photograph? Yes?

A. Yes.

…

Q. In the foreground of that image, can you see rusted machine parts?

A. I can see the old…(not transcribable)…that I use to…(not transcribable)…the paddock that's connected to my tractor. All that equipment's gone because it's over near the William's farm shed where I placed it.

Q. In the middle of that image can you see an old house?

A. Yes, I can, yes.

Q. Nobody's done any work on that house for a long time, have they?

A. Not for the last year and a half, but how that house is exposed, that old house…

A. This old house was totally covered in lantana and privet and it had a large amount of vegetation on the roof, your Honour.

Q. Mr Lewis, that's nowhere in your evidence, is it?

A. No, not in detail, no.

225. Unlike in Dable v Peisley (see [123]), in the present case the subject matter of the alleged promise to leave property by will was unquestionably real property, being Lot 1. Accordingly, ss 23C and 54A of the Conveyancing Act 1919 (NSW) will apply in accordance with their terms to the alleged contract. As there is no suggestion that the contract was in writing, even if it is proved, it will not be enforceable unless Mr Lewis is able to rely upon part performance to avoid the operation of the statute: see Dable v Peisley at [124] to [126].

226. In Saliba v Tarmo [2009] NSWSC 581, Nicholas J, in considering whether a proprietary estoppel by encouragement claim had been made out in relation to a promise made before the death of the deceased to leave half of her estate to the plaintiffs, adopted, as have many other judges, the summary of the relevant principles provided by Brereton J, as follows:

[52] In Vukic v Luca Grbin: Estate of Zvonko Grbin [2006] NSWSC 41 Brereton J provided the following summary of the relevant principles, which I respectfully adopt:

Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 675; Thompson v Palmer (1933) 49 CLR 507 at 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 404 (Mason CJ and Wilson J)]. It is essential to an equitable estoppel that the defendant knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation [Crabb v Arun District Council [1976] Ch 179 at 188; Waltons v Maher, 423 (Brennan J)]. Such knowledge or intention may easily be inferred where the adoption of the assumption or expectation is induced by the making of a promise, but may also be found where the defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when in conscience objection ought to be stated [Waltons v Maher, 423 (Brennan J)]. The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].

227. As I noted in Ak-Tankiz v Ak [2014] NSWSC 1044, in Dable v Peisley at [24], Ward J distinguished Saliba v Tarmo without suggesting that Nicholas J’s acceptance of the principles expounded by Brereton J was incorrect, and indeed she set out those principles with approval at [128]. Her Honour’s judgment demonstrates the need for the Court to look closely at the evidence in order to identify with precision the content of the assurance given by the deceased, and to decide whether there was sufficient detrimental reliance on the assurance, such as to make it unconscionable for the deceased, or the deceased’s estate, to depart from the assurance.

228. It is also necessary for the Court to bear in mind the need for care in accepting evidence concerning the giving of assurances by the deceased person where the evidence of the claimant cannot be contradicted by the alleged maker of the assurance. Ward J said:

[130] The difficulties facing the court where a claim is based on an assurance made by a deceased have been noted in many cases. In Weeks v Hrubala [2008] NSWSC 162 (at [20]), Young CJ in Eq stated:

In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration.

[131] In Vukic and Saliba, their Honours both emphasised that the court must closely scrutinise claims against an estate in circumstances where the only person who can contest the issue is deceased.

229. Although Mr Stewart is still alive, I consider these provisions to be applicable because his absence of legal capacity to conduct his own defence has had the result that he has been totally unable to respond to, or to contradict where appropriate, the evidence tendered in support of Mr Lewis’ case.

Consideration

230. I consider that this case is one that is required largely to be decided upon the facts.

231. Although I have given Mr Lewis leave to amend his statement of claim to plead a claim based upon a contract between himself and Mr Stewart that Mr Stewart would leave Lot 1 to Mr Lewis if Mr Lewis continued to clean up and remediate Lots 1 and 2, that Mr Lewis is entitled to damages because Mr Stewart has repudiated his obligations under the contract, I reject that claim. I do so principally for the fundamental reason that, in my view, even on an analysis of the evidence given by Mr Lewis and Steven Lewis most favourable to Mr Lewis’ claim, it cannot be concluded that there was a bargain between Mr Lewis and Mr Stewart that was capable of giving rise to contractual obligations. For the Court to be able to find that a contract was entered into between two parties, when it looks at the facts it must find that each party made a promise to the other in return for that other’s promise to the first party, or alternatively, in the case of a unilateral contract, the first party must make a promise to the other, where the offer constituted by that promise must be accepted by the other performing the act required by the first party. In very simple terms there must be a ‘deal’. In my opinion it is quite clear in the present case that there was no such deal. There is no suggestion that Mr Lewis made any promise to Mr Stewart in respect of continuing the cleaning up and the remediation of the properties. There is no suggestion that Mr Stewart said that he would leave Lot 1 to Mr Lewis in his will on the condition that Mr Lewis would continue to clean up and remediate the properties.

232. On the facts, no obligation was imposed upon Mr Lewis. As a subsidiary matter, even if it were possible to discern an obligation accepted by Mr Lewis, its content was not defined in any way. The supposed contract between Mr Lewis and Mr Stewart would have been illusory, as there was no definition of what cleanup and remediation works were required of Mr Lewis, so it could not have been known whether or not Mr Lewis had complied with his own obligations.

233. As I have found that Mr Lewis and Mr Stewart did not enter into a binding contract, the question of whether Mr Stewart repudiated that contract at the time that he lost legal capacity without having already made a will leaving Lot 1 to Mr Lewis does not arise. In my view, had that question arisen, it would have given rise to difficult practical and theoretical questions.

234. One problem would be that, even though Mr Lewis has accepted that the effect of the stroke suffered by Mr Stewart has rendered him legally incapable for the purposes of conducting his own defence, there has been no evidence at all concerning the true nature of Mr Stewart’s disability, whether the disability extends to depriving him of capacity to make a will, and whether or not there is any chance of him regaining that capacity. I would feel a great inhibition about even commencing a consideration of whether Mr Stewart’s conduct could constitute the repudiation of the alleged contract, solely on the basis of an agreement between the parties that he required a tutor and is incapable of conducting his own defence of the present litigation.

235. It is likely that the conjunction between the principles that govern when a contract is repudiated by reason of a contracting party becoming incapable of performance, and the principles considered by Handley AJA as discussed above concerning the contingent operation of contracts to make or not to revoke or alter wills, would give rise to acutely difficult problems, if they were required to be resolved in the present case. I suggest rhetorically: even if Mr Stewart’s stroke has had the effect that he is now permanently incapable of making a will with the required term, how can it now be said that he has repudiated the contract by his inaction, while he remains alive, and contingencies could fall in following his death that would in any case have denied the right in Mr Lewis to inherit Lot 1?

236. As it is not necessary that these questions be explored, and as the parties have not put any detailed submissions concerning their proper resolution, I will say nothing further on the subject.

237. It is also not necessary for the Court to resolve the question whether Mr Lewis has undertaken sufficient acts of part performance so that the contract with Mr Stewart would be enforceable notwithstanding the absence of writing.

238. The real question is whether, by his assurances and representations to Mr Lewis to the effect that he would leave Lot 1 to Mr Lewis in his will, or later that he had already done so, Mr Stewart has encouraged Mr Lewis to undertake sufficient works following the initial time the assurance was given in 2003, to make it unconscionable to permit Mr Stewart to depart from his assurances and representations, by reason of the detriment that would cause to Mr Lewis.

239. I am firmly satisfied on the balance of probabilities that Mr Stewart did make to Mr Lewis the assurances and representations that Mr Lewis has claimed, substantially in the form and manner alleged, and that in reliance upon those assurances and representations Mr Lewis continued to engage in the cleanup and remediation works the subject of his evidence in these proceedings, from 2003 until some time in about 2014 or 2015, when Mr Lewis was informed that he would be required to vacate Lot 1.

240. Although there are many unsatisfactory aspects of Mr Lewis’ evidence, I accept his evidence as being truthful on the fundamental issue of whether or not Mr Stewart made the assurances and representations as claimed.

241. I consider Mr Lewis’ evidence in this regard to have been effectively corroborated by the evidence of Steven Lewis, which I am satisfied I should accept.

242. Although there is considerable uncertainty at the margins as to the precise amount and nature of the work done by Mr Lewis on the faith of the assurances and the representations, I am satisfied by the evidence considered above that Mr Lewis carried out substantial such works after 2003.

243. I am fortified in my conclusions by the evidence of the closeness of the relationship between Mr Lewis and Mr Stewart until well after 2003, which is an issue that was not challenged by Ms Mayhew on behalf of Mr Stewart. On the one hand, such a relationship would explain why Mr Lewis was prepared voluntarily to undertake substantial works for the benefit of Mr Stewart before 2003, but on the other, it would provide a basis for Mr Stewart to promise the making of a provision in his will, which otherwise would have been an improbable way for Mr Stewart to reward Mr Lewis for his efforts.

244. Although goodwill towards Mr Stewart (and perhaps some shame for the state of the properties caused by his father’s mining operations) may have initially sustained Mr Lewis’ preparedness to carry out considerable cleanup and remediation works voluntarily, I consider it to be highly probable that the fact that Mr Lewis was prepared to continue to carry out the works for some 10 further years is consistent with Mr Lewis having a belief that he would receive a reward that made the whole effort worthwhile. I consider that it would have been highly improbable that Mr Lewis would have continued with the cleanup and remediation works, in the absence of any other reward, if he had not believed that by one means or another he would receive title to Lot 1.

245. It is impossible to know whether, when Mr Stewart made the assurances and representations, in his mind he thought they would be binding and taken seriously by Mr Lewis. However, I am satisfied from the extensive nature of the works, that it was reasonable from Mr Lewis’ perspective to consider the statements made by Mr Stewart to be binding, and that Mr Lewis genuinely did believe that Mr Stewart would honour his assurances.

246. There is no evidence of Mr Stewart having immediate family, such as children, that would give rise to such an expectation that Mr Stewart would leave his estate wholly to parties other than Mr Lewis, that should reasonably have caused Mr Lewis to doubt that Mr Stewart genuinely intended to implement his assurances.

247. There is no evidence as to the value of Lot 1 at relevant times, most particularly at the times that Mr Stewart initially made the assurances and representations. There is no evidence therefore that the value of Lot 1 is so great in proportion to the value of the works undertaken by Mr Lewis, that if the Court held Mr Stewart, or his estate, to the assurances made, that would exceed what could be justified by the requirements of conscientious conduct and would be unjust to Mr Stewart as the estopped party.

248. I therefore find in principle that, by reason of the many encouragements he gave to Mr Lewis, Mr Stewart is estopped from denying that Mr Lewis is entitled to a beneficial interest in Lot 1, which he will ultimately be entitled to enjoy if, upon Mr Stewart’s ultimate death, no contingency occurs that would have the effect of denying Mr Lewis that beneficial interest in Lot 1, on the hypothesis that Mr Stewart had acted in accordance with his assurances and made a will leaving Lot 1 to Mr Lewis.

249. However, I am not satisfied that Mr Lewis has established that the remedy required in equity to avoid unconscionable conduct on Mr Stewart’s part extends to full and absolute beneficial ownership of Lot 1, subject to the contingencies that have been discussed above which can affect the entitlement of a person who has the benefit of a contract by another person to make a will in the first person’s favour.

250. On Mr Lewis’ own case, he agreed to pay the rates from the time in 2003 when he ceased paying rent, and he did not pay the rates. Mr Lewis has had the benefit of rent-free occupancy of Lot 1 and part of Lot 2 for the whole of that period. In my view, Mr Lewis should be required to give credit to Mr Stewart (or his estate when the time comes) for an appropriate amount in respect of Mr Lewis’ occupation of the property. Whether that amount should be measured by reference to the unpaid rates, or an occupation fee calculated on some other basis, is a matter that I consider remains open. It may also be relevant to have regard to periods during which Mr Lewis conducted a business from the property, as opposed to periods when he did not. These matters remain unclear, in part as a result of the reality of the manner in which the case was conducted, whereby the question of the quantum of any remedy was deferred.

251. A much more difficult question arises out of the possibility, which remains exceedingly unclear on the evidence, that by reason of Mr Stewart’s illness, or some other unknown consideration, Mr Lewis continued to perform substantial works on the property after Mr Stewart had ceased to be able to give his immediate approval or acquiescence, and that Mr Lewis has carried out works of which Mr Stewart did not approve, as if Mr Lewis was entitled to the interest in Lot 1 promised to him before he had actually received it by means of the execution of Mr Stewart’s will. A matter not explored in the evidence is whether the work carried out by Mr Lewis improved the value of the property, or not. As Mr Lewis was not entitled to treat the property as his own, and was only entitled to alter the nature of the property with Mr Stewart’s consent, it is possible that some works undertaken by Mr Lewis could have a bearing on the determination of the appropriate remedy to be granted to Mr Lewis, to ensure that the remedy is consistent with equity’s requirement of conscientious conduct on Mr Stewart’s part.

252. I have mentioned above that I agreed with counsel for the parties to decide this case upon the basis of written submissions, subject to the right to call for additional submissions if I thought that to be necessary in the absence of the Court having the opportunity to receive oral submissions on behalf of the parties.

253. I have come to the conclusion that the finding that I have expressed as to the outcome of the present proceedings in principle should be as far as the Court should go without giving the parties an opportunity to make further submissions concerning the orders that the Court should now make, and any further case management orders that should be made for the further prosecution of these proceedings.

254. While it seems to me, given the contingent effect even of estoppels that arise in the context of assurances as to the terms of a party’s will, that the in principle result I have stated above properly describes the nature of the rights that Mr Lewis has established, I do not consider that I have heard full argument on that issue. The difficulty arises from the inherently contingent nature of the rights that may be founded on the existence of the estoppel. For my own part, I would hold that the existence of the contingency does not prevent Mr Lewis having present rights, and probably even proprietary rights, in respect of Lot 1. There must, however, be a need for careful consideration of the true nature of the rights that can exist at this time, and also as to what remedies are available pending the time, if it arises, when Mr Lewis’ interest ceases to be contingent.

255. As a separate matter, I am aware that Mr Lewis has said that his caveat has lapsed. I have also been told of a proposal on the part of Ms Mayhew to sell Lots 1 and 2 to be able to provide for the financial needs of Mr Stewart. There was a positive suggestion on the part of Mr Lewis during the hearing that it would be desirable for the properties to be sold and that Mr Lewis’ entitlement, measured in money, should be ascertained after the sale of the properties.

256. These subsidiary issues raise questions concerning the operation of the principles that govern contracts to make wills, as well as estoppels that may have an equivalent effect, during the continuation of the life of the promisor.

257. I will deliver these reasons for judgment, and fix a time for a further directions hearing, at which the Court can hear from the parties and determine the future course of these proceedings.

258. I will also hear from the parties as to whether it is appropriate for the Court to make any costs order at this stage, and if so, what that order should be.

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Decision last updated: 06 August 2018