Lee v Australian Executor Trustees Limited as trustee of the Estate of the Late Ronald William Lee [No 3]
[2020] WASC 447
•4 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LEE -v- AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS TRUSTEE OF THE ESTATE OF THE LATE RONALD WILLIAM LEE [No 3] [2020] WASC 447
CORAM: KENNETH MARTIN J
HEARD: 14 - 16, 19 - 21 OCTOBER 2020
DELIVERED : 4 DECEMBER 2020
FILE NO/S: CIV 2856 of 2018
BETWEEN: JOHN ANTHONY CAMPBELL LEE
Plaintiff
AND
AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS TRUSTEE OF THE ESTATE OF THE LATE RONALD WILLIAM LEE
First Defendant
FAY EILEEN LEE
Second Defendant
AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS TRUSTEE OF THE ESTATE OF THE LATE RONALD WILLIAM LEE
Plaintiff by counterclaim
AND
JOHN ANTHONY CAMPBELL LEE
First defendant by counterclaim
FAY EILEEN LEE
Second defendant by counterclaim
Catchwords:
Equity and trusts - Estoppel - Proprietary estoppel - Family farm land context - Promises by father to give family farm to son at some time - Son acts in reliance on promises over his youth and adult life - Farm land owned by father and not disposed of under the will of father - Farm held in deceased father's estate by trustee - Proceeding to have family farm removed from estate and transferred to son
Equity and trusts - Undue influence claim by trustee against widow and son of deceased - Whether situational undue influence exerted over aged husband suffering deteriorating vision - Whether presumption rebutted
Legislation:
Nil
Result:
Judgment for the plaintiff
First defendant's counterclaim dismissed
Category: B
Representation:
Original Action
Counsel:
| Plaintiff | : | Mr M Curwood |
| First Defendant | : | Mr M McKenna & Mr P Tydde |
| Second Defendant | : | Mr T O Coyle |
Solicitors:
| Plaintiff | : | Croftbridge |
| First Defendant | : | Gilbert + Tobin |
| Second Defendant | : | Solomon Hollett Lawyers |
Counterclaim
Counsel:
| Plaintiff by counterclaim | : | Mr M McKenna & Mr P Tydde |
| First defendant by counterclaim | : | Mr M Curwood |
| Second defendant by counterclaim | : | Mr T O Coyle |
Solicitors:
| Plaintiff by counterclaim | : | Gilbert + Tobin |
| First defendant by counterclaim | : | Croftbridge |
| Second defendant by counterclaim | : | Solomon Hollett Lawyers |
Case(s) referred to in decision(s):
Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2009] WASC 107; (2009) 39 WAR
Clifton v Chinnery [2011] WASC 294
Currie v Currie [No 2] [2017] WASC 312
Currie v Currie [No 2] [2019] WASCA 2
Donis v Donis [2007] VSCA 89; (2007) 19 VR 577
Johnson v Buttress (1936) 56 CLR 113
Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Spong v Spong (1914) 18 CLR 544
Thorne v Kennedy [2017] HCA 49; (2017) 350 ALR 1
Table of Contents
Introduction
John's case
AET's case
Legal principles
Proprietary estoppel
Undue influence
The evidence and the witnesses at the trial
John
Jonine
Conversation with Ron in the boning room
Conversation with Ron at the chairlift at Marine Parade
Fay
The significant assurances
Conversation with Mr Stewart - 1976/1977
Conversation with Mr Thomas - 1983
Conversation with Mr Peters - 1991
Ron and John's disagreement and estrangement - 2003
Christmas lunch reconciliation - 2005
Conversation between Ron and John - 2006
The 'poor bastard' conversation - 2006
Concluding observations as to the assurances to John by Ron
Conclusions and outcomes
John's claim
AET's claim against Fay and John
Disposition
KENNETH MARTIN J:
Introduction
The present trial concerns an action by the plaintiff, Mr John Lee, advancing a cause of action in equity to assert by proprietary estoppel his claim over rural farming land (the Bullsbrook farm). That claim is made against the trustee of the estate of his late father (the first defendant, AET). Through these reasons, as was universally the practice at the trial, I will refer to the Lee family participants by their first names. I mean no disrespect in doing so.
Mr Ron Lee, John's father, died of hospital contracted pneumonia on 26 July 2016, aged 88.
Ron died a wealthy man. I dealt with his family corporations in an oppression context in Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346. That proceeding featured some of the same protagonists as this action. However, this current action deals exclusively, and independently, with Ron's extensive farming land interests held in his personal legal ownership.
The second defendant in the action is John's mother and widow of Ron, namely, Mrs Fay Lee. For a time, including up until the fourth day of the trial, Fay had been asserting by counterclaim her own rival proprietary interest claim over the same Bullsbrook farm, by way of a claimed constructive trust. Fay's half interest claim was supposedly superior to and thus, inconsistent with the rival proprietary estoppel claim by her son, John. However, on the fourth day of the trial Fay, through counsel, abandoned her half interest claim over the Bullsbrook farm. Fay, who is now 85 years of age, and was a witness at the trial, effectively participates thereafter in this litigation only to refute AET's asserted distinct undue influence crossclaim that is still directed against her.
AET, as the court appointed trustee of Ron's estate, advances that claim against Fay of, in effect, situational undue influence upon the basis of her late husband's very poor eyesight (Ron having been assessed by doctors as legally blind and unable to drive) at a late stage of his life. AET's claim against Fay arises over the payment of an amount of $2,857,741.56 on 15 June 2016, into a joint account of Ron and Fay. The amount was a part payment of statutory compensation by the Commissioner of Main Roads, made in respect of a portion of the Bullsbrook farm - which was the subject of a taking order on 2 June 2015, to obtain land to facilitate the construction of a new road forming part of an ultimate Perth to Darwin highway.
AET's contention against Fay is that the part payment compensation money cheque was Ron's money entirely (Ron being the sole registered proprietor of the land taken) and so, ought to have been paid into Ron's account exclusively, rather than into a joint account of Ron and Fay. The hypothetical consequence of a payment into Ron's own bank account, says AET, would be that, at Ron's passing, any residual proceeds would then have formed a part of his estate, by contrast to the actual position that did arise - which was that at Ron's death the residual proceeds of those funds in the joint account passed by survivorship entirely to Fay. Prior to Ron's death, a cheque in the amount of $1 million had been drawn on that same joint account by Fay. The cheque was payable to John (Fay says with Ron's full consent and approval). AET, as Ron's trustee, in effect, seeks to reclaim back all those received compensation funds for the estate from both Fay and John, for them then to be redistributed as between the Lee family members on a basis akin to an intestacy.
In this context, it is important to note that there was no suggestion at trial that Ron had suffered under any cognitive disability in the period prior to his death on 26 July 2016. Ron had been admitted to hospital following a fall at his and Fay's jointly owned Cottesloe home, as Ron prepared to travel to a race meeting with Fay (ts 286). Despite executing a will form document in 2008, Ron nevertheless died effectively intestate - by reason of there being no effective disposal of any of Ron's assets under that 2008 will form document.
I will now move to provide a short overview of each of the two residual protagonist parties' cases advanced at this trial.
John's case
The consequence of Ron's failure to effectively dispose of his assets to anyone under the June 2008 will form instrument he had signed, left the promises that John says were made to him by Ron as to John receiving the Bullsbrook farm at an appropriate time, unmet. That is the contended unconscionable conduct of Ron which John seeks to remedy by his proprietary estoppel action directed against Ron's estate in the present trial.
The position of AET, in resisting John's proprietary estoppel claim to the Bullsbrook farm, is essentially that of a trustee (of Ron's estate), who does not provide an affirmative consent to such a claim but, nevertheless, is not adducing any affirmatively contrary evidence, of consequence against John's claim - other than by cross‑examination. AET said at the trial through its counsel that it would make John 'work' to prove his claim.
To that end, AET contends to the effect that various verbal statements made over time by Ron to John about receiving the farm at an appropriate time were, essentially, all too vague or too uncertain - in order to provide a sound basis for John's proprietary estoppel cause of action. Allied to that is a contention, which must be accepted, that all of Ron's promises to John as to his receiving the Bullsbrook farm some day, and which John says he relies upon, were all entirely verbal. AET says that there is, essentially, nothing in writing to support or to verify John's claims as to such promises and John's reliance upon them in the period before Ron's death.
AET also contends that John has not sufficiently established he has suffered in any tangible way as a result of his required detrimental reliance upon such promises or assurances as made to him by his father about receiving the Bullsbrook farm, even if they are proved as being made and relied upon.
The Bullsbrook farm has a modest residence on it at which John currently resides, along with his long term partner, Ms Jonine Bonomelli, and their two children. John and his family, as I will explain, have resided there on an intermittent basis for significant parts of John's adult life. As he had for some years prior to Ron's death, John continues to operate and to manage the Bullsbrook farm and the cattle farming operation conducted upon it during the pendency of the present action against AET. He has done so with AET's concurrence after Ron's death and pending this trial's outcome.
John's evidence at the trial in respect of his proprietary estoppel claim was not seriously challenged by AET, as being unreliable evidence. John's trial evidence, of course, concerned what he related at 2020 as to what had been said to him by Ron during Ron's lifetime. That evidence explained John's resulting expectation that John would eventually receive the Bullsbrook farm as his, if John devoted himself to working on the farm, essentially as his chosen career, working alongside his father.
As mentioned, the position at trial became that after day four, from then John faced no rival claim by his mother - potentially conflicting with John's proprietary estoppel claim to all of the Bullsbrook farm upon his father's death.
AET's case
AET's crossclaim advanced against both Fay and John is one of suggested situational undue influence over Ron by Fay - in relation to statutory compensation money received for taken land from the Bullsbrook farm land. Allied to that is a contended breach of alleged fiduciary duty by John vis-à-vis Ron, in relation to John's preparation and submission of documentation advancing the claim for compensation by Ron and Fay - as that documentation was prepared and lodged for statutory compensation by John (once approved and signed by both his parents).
The essence of the fiduciary duty breach contention put against John by AET is that, bearing in mind the Bullsbrook farm was always held under the sole registered legal ownership of his father (and not his mother), that the as prepared and submitted compensation claim materials, seeking joint compensation for Ron and Fay ought not to have been so prepared and submitted by John to seek joint compensation. Instead, it is put by AET that the materials ought to have been prepared and submitted by John to seek compensation solely for Ron, as legal owner.
Before turning to the trial evidence underlying John and AET's claims, I briefly divert to discuss the legal principles governing a proprietary estoppel claim to land and those governing a claim of undue influence.
Legal principles
Proprietary estoppel
There was no disagreement between the parties at the trial concerning the legal ingredients necessary to establish a cause of action grounded upon propriety estoppel. This genre of equitable estoppel exposes the work of a court of equity, in effect, at its most powerful. It is a rare estoppel situation of equity actually providing a cause of action, and so, relief against unconscionable circumstances, through the principled work of equity as a 'sword', rather than a mere 'shield' against unconscionable conduct.
In my reasons for decision in Clifton v Chinnery [2011] WASC 294, delivered 26 October 2011 at [45] - [74], I commenced there to discuss proprietary proprietary estoppel principles, and then, by reference to Owen J's discussion of the different genres of estoppel in Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2009] WASC 107; (2009) 39 WAR 1 at [3535] and following.
Subsequent to those reasons, there has followed, of course, a significant decision of the High Court of Australia regarding proprietary estoppel, Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505. More recently, for Western Australia, the Court of Appeal in Currie v Currie [No 2] [2019] WASCA 2 upheld a first instance decision concerning a successful proprietary estoppel claim established at trial before Le Miere J: see Currie v Currie [No 2] [2017] WASC 312.
In the course of upholding that primary decision, the Court of Appeal in Currie summarised and applied the principles towards proprietary estoppel as stated by the trial judge.
It is sufficient for present purposes and for this trial merely to repeat the summary of principles articulated by the Court of Appeal in Currie, which incorporated Le Miere J's outline of the principles, given they were not in dispute in that appeal. I refer to [89] - [90] of the Court of Appeal's reasons in Currie, as follows:
89...
1.Proprietary estoppel is a variety of estoppel and may found relief which requires the taking of active steps by the defendant.
2.The elements of proprietary estoppel are:
(a)the plaintiff assumes the future acquisition of ownership of property;
(b)the plaintiff's assumption was induced, encouraged or acquiesced in by the defendant;
(c)the plaintiff has detrimentally relied upon his assumption; and
(d)it would now be against the conscience for the defendant to be permitted to depart from the assumed state of affairs.
3.The fact that a plaintiff does not assume that a 'particular legal relationship' would exist between the parties is not determinative of a proprietary estoppel claim.
4.There may be circumstances, particularly in domestic/family cases, where the parties did not contemplate that a particular legal relationship would exist, but simply that an interest in land would be granted.
5.An assumption that land will be received by will is capable of giving rise to a proprietary estoppel.
6.In order to found an estoppel in favour of a representee, the representation must be clear in the sense that the words used by the representor must be able to be understood by the representee in a particular sense, thereby providing the basis for the assumption or expectation upon which the representee acts. The words must be capable of misleading a reasonable person in the way that the representee claims he or she has been misled.
7.To establish estoppel by encouragement it is not necessary that the defendant's conduct should be the sole inducement operating on the mind of the plaintiff setting up the estoppel. It is sufficient that the defendant's promises or assurances were an inducement to the plaintiff doing the things which constituted the detrimental reliance.
8.Where assurances given were intended to be relied upon and were in fact relied on, it is not necessary to look for an irrevocable promise since it was the other party's detrimental reliance on the promise which made it irrevocable.
9.If a proprietary estoppel is established, the appropriate relief depends on the facts. The court must look at the circumstances to decide in what way the equity can be satisfied. Relief may be moulded to recognise practical considerations, including the need to achieve a clean break so far as possible, and to avoid or minimise future friction.
10.The court must also take into account the impact of its orders on relevant third parties and any hardship or injustice they would suffer.
11.The court will enforce a reasonable expectation which the party bound created or encouraged, unless the circumstances require a different outcome.
12.Conditions may be imposed on a plaintiff to take into account conditions subject to which the plaintiff assumed he or she would acquire ownership of the property.
13.The circumstances may be such that the equity raised by the defendant's conduct can only be accounted for by declaring a constructive trust, or ordering the transfer of property, during the defendant's lifetime. That is notwithstanding that the relevant representation was that the property would be transferred by will upon the defendant's death, or that there was no representation as to the timing of the transfer, if the defendant has unconscionably disavowed or resiled from the assumed or expected position during the defendant's lifetime. However, in those circumstances 'the acceleration of the benefit the subject of the disappointed expectation' may be a factor relevant to the assessment of the scope of the relief granted.
90Further, in relation to detriment, the judge said:
The relevant inquiry into detriment is not a taking of an account of respective advantages and disadvantages. Giumelli v Guimelli [27] (Gleeson CJ, McHugh, Gummow & Callinan JJ), Finn v Finn [120] - [121] (Brooking JA), Sidhu v Van Dyke [85] - [86] (Gageler J), Rodda v Ian Rodda Pty Ltd (2015) SASC 95 [305] -[306] (Nicholson J). The observations of Nettle JA in Donis v Donis (2007) 19 VR 577 [34], described in Sidhu v Van Dyke [84] as apposite, are apposite in this case:
'Where, however, as here, the detriment suffered is of a kind and extent that involves life changing decisions with irreversible consequences of a profoundly personal nature, it is my view beyond the measure of money and such that the equity arranged by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.'
(citations omitted)
Further, and by reference to the observations of the plurality made in Sidhu v Van Dyke at [84], it is also to be noted that the court endorsed certain further observations as were made by Nettle JA (as his Honour then was) in the Victorian Court of Appeal in a Victorian decision Donis v Donis [2007] VSCA 89; (2007) 19 VR 577. His Honour had said in Donis at [34]:
[H]ere the detriment suffered is of a kind and extent that involves life changing decisions with irreversible consequences of a profoundly personal nature ... beyond the measure of money and such that the equity raised by the promisor's conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent's actions were based.
See also Sidhu v Van Dyke at [85].
Undue influence
The key principles concerning undue influence were recently reconsidered and restated in Thorne v Kennedy [2017] HCA 49; (2017) 350 ALR 1 by plurality justices Kiefel CJ, Bell, Gageler, Keane & Edelman JJ. In my reasons in Shepherd v Galea [2019] WASC 164 (upheld by the Court of Appeal in Shepherd v Galea [2020] WASCA 152), at [199] - [202], I cite there the Thorne plurality's observations upon undue influence. They pertain, of course, to the case at hand. But I need not repeat them verbatim again.
The undue influence claim against Fay by AET is one of an asserted position of ascendency or influence over Ron. It is a claim advanced outside of the recognised traditional categories of influence as described in Thorne at [34]. Nevertheless, a presumption of influence may still arise from particular circumstances of a relationship - as is contended here, based upon Ron's eyesight problems and his advancing years vis-à-vis Fay.
But as was also discussed by their Honours in Thorne at [34], citing Spong v Spong (1914) 18 CLR 544, 549 (Griffith CJ) and Johnson v Buttress (1936) 56 CLR 113, 123 (Latham CJ), where a legal presumption of undue influence does arise in a relationship, the presumption is, nevertheless, rebuttable by evidence from 'the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will'. Fay seeks to do that in this trial, if it is necessary.
The evidence and the witnesses at the trial
The trial proceeded by viva voce evidence from three witnesses. To accompany that evidence, the parties earlier provided an agreed chronology of facts and events, which collects the many relevant facts not in dispute between them and which I may therefore rely on without controversy. That agreed chronology became trial exhibit 7. It is found included as Schedule 1 to these reasons. Should it ever become necessary, I note that Schedule 1 collects and records my own formal and uncontroversial factual findings made for this trial.
The only witnesses called to give evidence at the trial were John, his long‑term partner, Ms Jonine Bonomelli, and Fay.
AET did not seek to adduce any evidence from its own witnesses at the trial. Through counsel, it did cross‑examine each of the three trial witnesses. AET, of course, along with John and Fay, did tender a number of documents which were all received as a part of the underlying body of trial evidence as a whole.
John
Unsurprisingly, the primary witness in the plaintiff's case was John himself. I am more than alive to the fact that, in these currently presenting trial circumstances, the late Ron Lee is not around to provide his own version of events - in relation to John's evidence concerning his claim of a proprietary estoppel over the Bullsbrook farm. John's claim is, of course, based on the suggested verbal promises and encouragements he says were given to him by his father over his life as to John, one day, receiving the Bullsbrook farm as his. Because of that one-sided feature, I have been particularly cautious in relation to assessing John's trial evidence, which otherwise stands, in large part, as uncontradicted.
Similarly, I must accept, as AET says, that there is almost nothing in writing to support John's proprietary estoppel case. But that is often the nature of these cases. The nature of family farming relationships is such that I do not find an absence of written confirmation, in the circumstances, all that surprising. The informal and proximate characteristics of daily family relationships, particularly those which are largely harmonious and respectful over time, means that it is not unusual to find an absence of written communications touching upon delicate issues of this kind.
In the end, I assessed John's trial evidence as plausible, truthful and, ultimately, reliable. In all important areas then, it can be safely accepted.
My only very slight qualification to that otherwise positive assessment of John's evidence is in relation to a period of estrangement that occurred as between John and his father, commencing at some time around March or April 2003. This period spanned through to a 2005 Christmas lunch held at the family home of Ron and Fay at 214 Marine Parade, Cottesloe, where father and son then reconciled. The evidence of John and Jonine was that across the estrangement period John had remained in contact with his mother. Jonine had continued to bring their two children (Jesse and Evie) to see Fay. I fully accept all that to be so. John's evidence was that he did not speak at all to his father over this, essentially, 30-month or so period. Again, I accept that. But during his evidence John, I thought, tended to downplay the seriousness of this period of estrangement with his father, essentially, as just one of those things that sometimes happens from time to time as between a father and son. It was a lot more serious than that, by my assessment.
Accepting, as I do, scope for family disagreements to arise from time to time in any family, my assessment is that John's evidence in this realm has downplayed the extent of the rift as between himself and Ron, over this period. However, I do not attribute John's downplaying of this estrangement period with Ron to anything adverse, other than perhaps a natural enough desire on John's part, whilst looking back well after a sad event and in the wake of his father's passing, for the estrangement period to be viewed perhaps with regret and as an unfortunate occurrence. This is particularly so when viewed in light of the welcome 2005 reconciliation which occurred and then a subsequent decade of good and workable relations between John, Ron and Fay before Ron's passing in 2016.
Subject to that minor reservation, I otherwise assessed John's trial evidence as convincing and reliable.
Much of John's key evidence concerned the verbal promises or assurances made to him over his life, by Ron. I address the significant aspects of that evidence in the later sections of these reasons.
Jonine
Jonine also gave evidence at the trial to support John's case. Again, her position as John's long-term partner did not escape my attention as regards her interest in the trial. Nevertheless, I was impressed by the unvarnished frankness of Jonine's trial evidence. She was only faintly cross-examined by counsel for AET. I assessed Jonine's evidence to be reliable and important, particularly in the two significant respects discussed below.
Conversation with Ron in the boning room
At the trial Jonine related a conversation she had had alone with Ron at the boning room of the Lee Bros meat processing plant on Great Eastern Highway in around 1991 or 1992, where she worked (ts 255) as an employee in the early days of her relationship with John.
Jonine related that she had offered to make Ron a cup of tea. Having done that, and in her conversation with him, she recalled that Ron had then said to her, 'Do you know I bought these farms for Johnny?' (ts 255).
Jonine's evidence was to the effect that she did not tell John about that conversation until after Ron's death (ts 263) (in 2016). The evidence was essentially relied upon only to support a suggested propensity in Ron, either by way of tendency, or by his admission, to have likely made statements of a similar character to John. Whilst I do find the evidence of Jonine is admissible to that end, it certainly cannot go at all to proving John's reliance, given that he did not ever know about what Ron had said to Jonine, until after Ron's death. Nevertheless, there is sufficient other trial evidence without this evidence of the particular Ron/Jonine conversation to sustain John's proprietary estoppel claim, as I will explain.
Conversation with Ron at the chairlift at Marine Parade
A second incident as related at trial by Jonine concerned a conversation closer to the time of Ron's death. This was in 2016, when Jonine was assisting Ron to get down the stairs to the garage at the Lee family home in Marine Parade, Cottesloe, by his using a seated descending lift. At this time, John and Fay had already gone downstairs. They were waiting at the car to travel then to get fish and chips at a local shop. Ron and Jonine were following. Hence, this was another conversation just between Jonine and Ron. From the evidence, I assess this to have been a conversation proximate to June 2016. As related by Jonine, Ron had then said to her, in effect, that he and Fay had each decided to give a half of their shares of the compensation money as received from the Main Roads for the Bullsbrook farm, to John (ts 262). But Ron also told Jonine not to tell John, as they wanted it to be, in effect, a surprise for him (ts 262). Jonine honoured that request by Ron. She did not tell John of the conversation until after Ron's death. As mentioned, shortly before Ron's death, John did receive and then banked a cheque for $1 million drawn on his parents' joint account.
Again, I accept this evidence from Jonine as wholly reliable. From a cognitive perspective, it indicates that Ron, at that time, fully understood what was to be happening in relation to his joint receipt with Fay of an instalment of statutory compensation which had either then been received, or was shortly about to be received by Ron and Fay, in respect of the part tranche of compensation for the land taken by Main Roads from the Bullsbrook farm for the purpose of a Perth to Darwin highway.
Allied to that cognitive insight in Ron at the time was Ron's expressed intention to advance some money to John, effectively, as a part of a joint contribution by he and Fay to John to to that end. The evidence is also significant in terms of assisting in rebutting the suggestion and any legal presumption that, somehow, Ron's free will at the time in 2016 had then been overborne about this compensation transaction in terms of his non‑receipt of all of the compensation money, or that, somehow, some compensation money was being illegitimately advanced to John, as a part of some underlying grand plan to divert the compensation money to away from Ron. I reject all such suggestions. Instead, I find Ron was fully cognisant of, indeed perfectly happy and content with, what was occurring then with the compensation transaction as he, in effect, had confided in Jonine.
Fay
The other witness at the trial was, of course, Fay. I have already indicated that on day four of the trial, prior to Fay's scheduled evidence, that the rival claim she had until then advanced to the effect of she herself enjoying a half interest (with Ron) over the Bullsbrook farm, both superior to and in conflict with that of John's claim to a full interest, was abandoned.
Effectively from then, Fay was only providing her evidence at the trial to answer the counterclaim contentions of situational undue influence put against her by AET. This was to the effect that Ron's sight disability problems had been taken advantage of by Fay, in order to get Ron to sign documents that were to be submitted a claim for statutory compensation on a joint (Ron and Fay) basis, rather than just as a claim for compensation singularly submitted by Ron, given his sole ownership and his registered legal title over the Bullsbrook farm. Part of AET's contention of undue influence said to arise as a matter of a situational presumption, based on Ron's sight disability and his age, was that the influence of Fay had continued in relation to the as received joint compensation cheque, being paid into the joint account of Ron and Fay. It was argued that in the circumstances, if properly advised, Ron would have sought that all of the compensation money when received would have been paid into one of his sole bank accounts - so that there was no prospect of that money later being a subject of joint control, or being exposed to the vulnerability to the application of the survivorship principle, and favouring Fay as a surviving joint account owner party.
From Fay's trial cross‑examination by counsel for AET, I did not assess that the adverse contention of undue influence over Ron by her to be as strongly pressed, as it might have been. Nonetheless, by reason of the contended legal presumption (arising from the circumstances of their situational relationship given Ron's sight problems and his advancing age) Fay would carry an onus to provide evidence to rebut that adverse legal presumption of her undue influence over Ron. That was, essentially, the rebutting reason Fay entered the witness box and gave her trial evidence.
I found Fay's evidence a little vague at times, and also sometimes non‑responsive, in the way of her tendency to express a conclusion, rather than directly respond to questions both in-chief and in cross‑examination, by providing only responsive facts in answer to the question. Still, on the whole, I assessed Fay's evidence, given at her 85 years of age, as overall being truthful and reliable in the important respects. She related her lifetime relationship with Ron and how they invariably did business together, effectively as a team (ts 295 and ts 297). On any reasonable view, Ron and Fay's almost 60 years together as life partners bespeaks a successful alliance over a long period. Fay frankly explained Ron's deteriorating sight issues in his later years and how they managed and dealt with them satisfactorily together. This was through the use of magnifying devices, Ron's glasses or by other instruments that would assist Ron in reading when he wanted to read, particularly the racing form guide, relevant to Ron's ongoing and committed interest to that sport (ts 282 - 286). Specifically, Fay's trial evidence has satisfied me that Ron's sight issues were never taken advantage of by Fay to the benefit of herself or John. Rather, I would find she assisted Ron to his reaching a full comprehension of any issues notwithstanding his sight problems -which they satisfactorily managed together.
The next area that I address is the significant promises made to John by his father, concerning John receiving at some stage as his own the Bullsbrook farm. This issue made up a considerable part of John's evidence.
The significant assurances
Conversation with Mr Stewart - 1976/1977
In around 1976 or 1977, when John was 13 or 14 years of age, whilst working with his father in the middle paddock on the original Bullsbrook farm, when an incident occurred involving their next‑door farming neighbour, Mr Bob Stewart, and Mr Stewart's son, who had gone missing (ts 134 - 135). After Mr Stewart's Down Syndrome son had been located by John following a search, a conversation then ensued between Mr Stewart, Ron and the young John. As related by John in‑chief, Mr Stewart had then enquired about what John wanted to do into the future. The evidence unfolded from John (ts 135):
Right?---And I said to Bob that, you know, I wanted to be a farmer, and - like my father. And Bob then said, 'Well, what do you think of that Ron', and Ron said, 'Yes. Yes, that's okay by me'.
And when he said, 'that's okay by me', what did you understand that to mean?---Well, Bob then said, you know, 'What are your plans, Ron, for the property'? And Ron said that well, you know, 'the property will be John's, when - one day, when he grows up, and he wanted to be a farmer, if he wants it.'
Conversation with Mr Thomas - 1983
Around 1983, John and his father had a conversation concerning the acquisition of a further 64.74 hectares of adjoining land to the original Bullsbrook farm from another neighbour, Mr Thomas, for $135,000 (ts 142). Before proceeding with that acquisition, Ron required from John an assurance (which John ultimately gave) that John, who would have been around 20 years old at the time, would be there to develop that property, if acquired. Otherwise, Ron had said to John that he would not buy the extra land. John's evidence was (see ts 143):
I gave him 100 per cent commitment. I said, 'Yes, I think it's a good - I think it's a good purchase, I think it's a good fit, and I will give you my assurance that I will be there to do whatever is required to bring it up to the standard that we develop the property to.'
At ts 144, John described the farm work that was done after that time, estimating that it took him probably about two years to complete works necessary to bring the acquired property up to a standard required for incorporation into the existing cattle grazing operation as was being conducted by his father at the Bullsbrook farm.
John's evidence was that circa 1984 and 1985 he would have spent 40 to 60 hours a week working with his father on the Bullsbrook farm. In this period, he was still working at the Lee Bros meat processing plant in Midland in the mornings from about 7.00 am to 12.00 pm or 2.00 pm in the afternoon, and being paid $150 a week after tax (ts 138 and ts 145). John described the nature of the work done at Lee Bros in some contradistinction to his unpaid farm work this way (ts 141):
Lee Bros was with the cattle side of things at the saleyards, procuring cattle from suppliers. We would process them, take them to the wholesaler, and we - I would unload them, put them into the fridges, [weigh] them up, bring the other cut beef carcases out and bone them, give assistance in packing the beef, processing the beef, some deliveries, stacking the [freezers], till - from about 7 in the morning till between 12 or 2, depending how busy it was, what time of the year.
A typical working day for John, as described, would see him rise early to commence the meatworks' processing operations, sometimes in the meatworks boning room. This would, essentially, be physical work lasting until around 2.00 pm each day, whereupon John would cease that work to then travel back to the Bullsbrook farm, where he would engage with Ron in whatever level of farming operations were required at the farm on a seasonal basis, working long hours, until late into the evenings. From 1990 Jonine, who at that point had been in a relationship with John for some seven years, was also working in the boning room with John (ts 253).
Describing how he worked with his father at the farms, at ts 141 ‑ 142 John explained:
Well, no, Ron - Ron wouldn't spend much time at Lee Bros. He would in the morning, and then he would go out to the saleyards or go and do other jobs, and then we would - together, we would go out usually to the farms in the four-wheel-drive, or if I was a lot later I would drive out in my old, by then, HT station wagon.
Further describing work with his father as they were fencing together on the farm, John in-chief related the following (ts 146):
Ron would say to me on the fence quite often, regularly, that, you know, if he thought I [was] slacking off a bit and my pace was a bit slow, he would say things like, you know, you can't slack off with - I won't be here all the time and when I'm gone and the farm's yours you will be doing it by yourself, so just imagine how hard it's going to be then. He would say things like if he were teaching me a new knot on the fence, he would say, take note of it, you're going to have to learn how to do it when I'm not here. You are going to have to do it yourself, if you don't learn it now you will never learn it. These are skills you're going to need in the future when the farm is yours.
Asked about the number of such conversations with his father, the following evidence emerged from John (ts 146):
So looking back now, it's many years ago, but are you able to see [sic] how frequently you had conversations with Ron about these types of things where he would give you a hard time, in effect?---I would say between three and five times a day.
All right.
KENNETH MARTIN J: Sorry, three to five times a day he would give you a hard time about something or - - - ?---Yes. He was a hard man.
For clarity's sake, I assess the answer from John in relation to the question that I had posed to him for clarification as being a neutral response by John made towards his father, rather than a criticism. The context was the arduous labour on the farms by both Ron and John working together across 90-hour weeks (ts 141) where John was, effectively, after voluntarily withdrawing from a commerce degree at university, then working at two jobs. John was receiving basic remuneration for his morning work at the Lee Bros meat processing plant at Midland. Then he worked in the afternoons and weekends with his father on the family farms. He was not paid for his farm work. Along with the Bullsbrook farm, the other family farm (Farndon Downs at Swan View) which had been acquired in April 1965, was developed, but then ultimately sold off (initially the sale being against Fay's wishes before she relented) in September 1987.
I should point out that such was Fay's initial disagreement over Ron's idea to sell Farndon Downs, that she had unilaterally placed a registered caveat D503981 on the title in June 1987. That caveat also extended to and remains on the original land acquisition of the Bullsbrook land of September 1968 (exhibit 6.302). Subsequently, Farndon Downs was sold off, with Fay obviously being appeased and persuaded to lift the caveat. But the expression by her of her own interest in that land, notwithstanding that Lee family farming land was invariably acquired in Ron's sole name, is some insight into the relationship between them, as regards a joint family endeavour concerning farming land, even though it was held in Ron's name. I do not assess anything unusual or untoward in such a family understanding between long term life partners, by putting strict ownership legalities to one side between themselves.
Conversation with Mr Peters - 1991
The next incident that I would relate of significance concerns the acquisition by Ron of a third tranche of neighbouring properties, to add to his already existing land components of the Bullsbrook farm, from a Mr Bevan Peters (ts 153). In 1991, John was around 28 years of age. There had been some land acquisition negotiations pending, as between Ron with Mr Peters, starting at a proposed acquisition price of $350,000. Eventually, after a further meeting, when Mr Peters disclosed that he was suffering a terminal illness, Ron had then offered $250,000 cash, which was accepted (ts 156).
The significant evidence, however, relates to the discussion John had with Mr Peters in the presence of Ron, when the deal was done. This discussion was conducted in a shed on the property. As related by John, the evidence was as follows (ts 157 - 158):
Ron and I met Mr Peters at the shed of the property. And Mr Peters was questioning Ron. Well, he said to Ron, 'John's name is not on the contract.' And Ron said, 'No, it's not.' And he looked at me, he stared straight at me and he said - - -
So who stared straight at you?---Bevan Peters looked straight at me and he said, 'Are you happy with that, Boy?' And I said, 'Yes, that's fine.' I, you know, I didn't have any money so I couldn't purchase it. And then he looked back at Ron, stared him straight in the eye and he said, 'Why is that?' And Ron said - he agreed, 'Well, yes, his name's not on the - on the contract, but it doesn't matter because it will all be his one day.' As he waved his arm over the property and said, 'It will all be his one day.'
What did you understand from what Ron had said there?---I was understanding that the understanding that we had that the property would be mine when Ron chose to hand it over.
What do you mean by 'property'?---I mean the Bullsbrook farm, which was approximately 950 acres after that purchase, the equipment and the cattle.
So in the context in which this conversation happened, was that, a serious or jocular comment? How was it said?---It was very serious. Yes. Bevan Peters, you know, was - he had indicated to me previously that he wanted the farm to go to someone who was going to appreciate and do the work.
Well, hang on. So in the context of what your father had said, was it surprising to you, that he said that? 'It will all be yours one day'?---No. That's what he had said to me and that was the understanding that we had for the previous 30 years.
And did you believe him?---Yes, I did. We were both grown men, mature men. We had done business together. I didn't think there was any other reason for there to be any purpose for which he would say that.
There was no objection to any of this evidence by AET.
Some time prior to this conversation with Mr Peters, John had been a resident in the asbestos house erected on the farm which had been part of the second acquisition of Bullsbrook farm land in 1983. The farmhouse was situate one to two kilometres from the boundary to the new land acquired from Mr Peters in 1991 (ts 158).
John's source of income until June 1994 was from his morning work at Lee Bros, where he was now receiving $300 a week (ts 148). He was still being paid nothing for his farm work by Ron (ts 160).
Ron and John's disagreement and estrangement - 2003
The same daily working life status quo for John continued until 2003, when John and his father then had their serious disagreement. This, as related by John, was over Ron's then expressed desire to sell off 100 to 150 of the heifers from the Bullsbrook farm. John strongly disagreed with that sale strategy. As he related it (ts 164):
We had spent a lot of money on blood stock, and they - we - I anticipated to use that for the breeding capacity of the herd going in the future.
At the time some heated words were exchanged as between the two men. The consequence was that John now ceased living in the farmhouse on the Bullsbrook farm. He moved to a rented house at Heathridge that was being occupied by Jonine and their two children (ts 164). At this time, John was approaching his 40th birthday, in August 2003. There followed a long period of silence and estrangement as between John and his father. But John and Fay remained in contact. John related that he was being paid by Lee Bros Pty Ltd (not the meat processor) for some finance work that he did for the company and at about $500 a week (ts 166). In terms of John's financial position at that time, he related (ts 166):
I had some cash in the bank from some life insurance policies, of which I used - and I had some cash from the sale of some shares that I acquired during some de-neutralisations [sic] with AMP, so I had AMP policies, AMP endowment policies, so they were paid out and that's the money I used to trade on the ETOs [Exchange Traded Options on the derivative market].
Christmas lunch reconciliation - 2005
John now related the 2005 family Christmas lunch reconciliation with his father at the house on Marine Parade, Cottesloe. At this time, John had been told through Fay that a $4 million offer had been made for the Bullsbrook farm and that Ron, now in his late 70s, was considering that offer (ts 167). The two men held a private conversation that day, on the couch. As related by John in the not infrequently encountered rather understated terms between conversing Australian males (ts 168):
... and Ron said that he had an offer of $4 million, to buy the property, and he said he was going to sell the property if I wasn't going to come back and work on the property. So he said to me, you know, 'Are you - do you want to come back? Are you going to come back and work on the property?'
And what did you say?---I said, 'Yes, I will come back and work on the property.'
The relationship as between the two men was now described by John this way (ts 169):
And so, was it - would you describe it as a warm situation? Was it business-like? What was it?---It was warm. It was a bit different to circumstances when we left. I think he was genuinely happy to see me.
And what about you, with him?---Yes, I had cooled right down. I mean, I didn't have anything against Ron, who - Ron's Ron. You know. He is what he is, and I know what that's like, so we were amicable. We were friendly. I had nothing against him, you know, and - - -
Conversation between Ron and John - 2006
Following the 2005 Christmas lunch accord, John shortly thereafter visited the Bullsbrook farm and met with Ron there. John saw that much work was needed to be done. John then began working on the farm again and at some point later (around the beginning of 2015) he moved back with his family to reside in the farmhouse (see Jonine's evidence at ts 260).
After resuming work on the farm, John and his father had a further conversation. I find this would have been at some time around 2006. As related by John, this was a conversation with his father, when they were repairing a gate together (ts 171 - 172):
Did you have any conversation with him where you sought to clarify your role on the farm?---We - when I came back in 2006, we were repairing a gate, and it was a large gate, and I said to Ron, when we were doing the gate - you know, 'Do you think it's time to put the farm in my name now?' and Ron - - -
What did he say?---Well, Ron said to me, 'Well, that's not what Frank thinks.'
Who's Frank?---Frank is Ron's accountant.
Sorry, what - you've asked your father to put the farm in your name, is that what you're saying?---Yes.
And what did he say?---He said to me, 'That's not what Frank thinks.'
And what did you say in response to that?---I said to him, 'What has it got to do with Frank?'
And what did he say?---And then he said that Frank's going to be the one to decide when the farm will be transferred.
And how was that conversation left?---Well, that was it. I took it as, Frank wasn't going to transfer it now because of whatever reason - maybe stamp duty, maybe timing. I didn't know how he was going to transfer it or exactly when, but it did seem to be that the farm was going to go to John one day, but one day wasn't 2006, because that's not what Frank thought should be done.
The 'poor bastard' conversation - 2006
The last conversation of significance that I mention concerning John and his father was related this way, in the period after 2006 and in the midst of the beginning of calving season (ts 176):
Do you recall getting paid any money by Ron after you returned to the farm for what you were doing?---Yes, I think I received a $5000 payment about three to four months after I resumed, and then another, I think four or five thousand-odd dollar payment, I think, six months after that.
And how were these payments made to you?---I received a cheque from Ron.
And what, if anything, did he tell you at the time of giving you the money?---He just, basically, said 'I've got to give you some money, you poor bastard' - 'I had better give you some money, you poor bastard', and so he gave me a cheque.
In response to a question from me, John clarified that he had not asked for the money. He had received a personal cheque from Ron or the RW Lee Property account.
At ts 178, John related that his father's work habit gradually changed from then, working on the Bullsbrook farm full-time, to Ron starting to scale back from around 2008. John related this (ts 178):
Well, he would, maybe, come Tuesday and a Thursday. The amount of physical work he was doing was a lot less. He would come out, just drive around and have a look. If he felt like doing something, he would; if he didn't, he wouldn't participate. He would come out, have a cup of tea, have a chat, have a look around, ask questions and then he might spend two or three hours, and then he would drive off home.
John said that his own workload was similar to what it had always been, doing the same amount of work to be performed, save that now John was the only one performing all the work. He said that this state of affairs continued in terms of his solely performing all the farm work right up until the time of Ron's death (ts 178).
Concluding observations as to the assurances to John by Ron
It may have been noted that some questions or evidence given during John's evidence-in-chief might have been objected to on the basis of leading, or otherwise the answers were not always perfectly responsive. That has not escaped my attention
I have taken all that into account in terms of evaluating John's evidence overall. Nonetheless, at the end, I was left well satisfied that the evidence as to the verbal assurances made to John by Ron, as now related above, is reliable, significant and should be accepted. In particular, the conversation with Mr Peters, proximate to the time of the 1991 acquisition of further property for the Bullsbrook farm, I think was clear evidence and was unequivocal from Ron in terms of the Bullsbrook farm being then promised to John as eventually being his. The evidence as a whole was also clear and unequivocal enough as to the promises and assurances made to John by Ron on this issue. It was reasonable, indeed logical, for John to accept and rely upon them at face value, as he did essentially until Ron's passing in 2016.
Possibly, had the 2003 estrangement between Ron and John continued, very different trial questions might have emerged. However, I am satisfied that this 30 month of so hiatus was overcome and that, assessed holistically, John's farm work contributions between 1982 and 2016, made towards the establishment and enhancement of the Bullsbrook farm (and before that towards the Farndon Downs property) was significant, in hours and economically valuable. I am satisfied that this work was performed in reliance upon a reasonable expectation created in John, by Ron's words to him, that the Bullsbrook farm would eventually be John's own. John received little remuneration from Ron for his work under these arrangements. The understanding was a longer term reward of the farming land itself for John.
This expectation was engendered by Ron within a family environment and a culture of hard work towards a common family greater long term good, which John had experienced essentially from childhood. The reasonable expectation created in John by Ron (fostered by Fay as well) was that as the sole male sibling in the family, if John devoted himself to a life career as a farmer, working diligently upon the family farm alongside his father, at a point to be determined by Ron - but, by inference, certainly not later than at his father's death (whenever that might transpire) or whenever the Lee family accountant (Frank Iannantuoni) thought it appropriate - that the Bullsbrook farm would be transferred to John's sole ownership. John would then enjoy full beneficial ownership in return for his largely unremunerated farm work efforts made over his working life. To that end, I reject the contention by AET that what was said to John by his father as to John receiving the farm in due course was ambiguous, equivocal or insufficiently certain in order to be reasonably relied upon by John. My assessment of the trial evidence is wholly and strongly to the contrary.
Conclusions and outcomes
The well-known legal elements for a proprietary estoppel claim are, of course, there be a sufficiently shown certain enough promise made to a plaintiff recipient which is then reasonably and detrimentally relied upon by the recipient. Such equitable claims are evaluated within an underlying context of providing a redress against the consequences of an act, or acts, of unconscionable conduct arising essentially out of a later non‑fulfilment of the promise, which has been detrimentally relied upon by the recipient. That is this case as regards John.
For present circumstances, as mentioned, AET did not really challenge the underlying facts on which John's proprietary estoppel claim rests, particularly as regards the contended promises or assurances said to have been made by his father as related by John. These essentially were ongoing acts of encouragement to John to Ron, to devote himself to working very long hours for no or minimal remuneration for his farm work (as he then did) - on the basis of a long term reward promise held out to him by Ron that one day the farms would be his.
All of this was unfolding in the Lee family situation where John's two elder sisters are not suggested by the trial evidence to have made any level of physical contribution to the considerable amount of improvement farming work conducted over many years at the Bullsbrook farm by Ron and John together - such as fencing, improvements, establishing new infrastructure, the soil and pasture enhancement, and the like. Rather, the constant labour and attention required to develop the properties to a viable and successful cattle operation was provided by John to his father for, effectively, no or minimal remuneration for John's work. With brief hiatuses around 1983, and then 1986, when John pulled out of university at second year to take a holiday and later travelled overseas for some months (ts 148), the only period when John was not fully committed to working with his father on Lee family farms as a part of their cattle grazing operations, was during a period after their argument in March 2003 and the subsequent estrangement.
The argument between father and son was heated at the time. It resulted in John uprooting himself from his residing and working at the Bullsbrook farming property and, effectively, to not speaking to his father for the next two and a half years, until the time of a Christmas lunch reconciliation in December 2005. Fortunately, a reconciliation was effected then and John returned to working and living on the Bullsbrook farm until Ron's death in July 2016.
John's claim
At the time of the 2003 argument with his father, John was approaching his 40th birthday. At that stage in his life, he owned, essentially, no assets. During the period of the estrangement he supported himself through his share trading activities.
At the 2005 Christmas lunch which John attended with his family he had been told by his father (and as his mother knew) that there had been an offer made for the Bullsbrook farm and that Ron, who was then in his late 70s, was proposing to accept that offer, unless John returned to the farm. John agreed to return and resume work, which he then did in early the following year, then working full-time for the next decade in labouring and advancing the cattle grazing operation conducted on the Bullsbrook farm.
Part of the other work John undertook for his parents was related to the negotiating with Main Roads Western Australia at or around 2015, in respect of the statutory compensation to be payable, by reason of a taking order for a section of the farming land which would, effectively, divide the Bullsbrook farm into two. The intrusion was part of a proposed road as part of the Perth to Darwin national highway infrastructure project. With the knowledge and encouragement of his parents, John had personally liaised with and prepared all the compensation claim documentation and the submissions lodged on behalf of Ron and Fay. This ultimately led to the part-payment cheque that was received in June 2016, to which I have referred.
AET points out that John had been remunerated over time by the corporation Lee Bros for his work at the meat processing operations of the family business. At the time John was enrolled at university studying an undergraduate commerce course, John was remunerated at the rate of about $150 a week. Later he was paid $300 a week for his meat processing work. In subsequent years, John was remunerated by Lee Bros Pty Ltd at a higher level (of about $500 a week) in respect of the administrative tasks that he undertook for that corporation at the behest, he says, of Fay from time to time. John accepts he received that remuneration over the years from Lee Bros Pty Ltd. He also accepts that at around just after when he returned to work on the farm in February 2006, his father then gave him some money by way of two cheques in amounts of $4,000 or $5,000 - funds which John says he did not ask for at the time, but which his father gave him, effectively, on a basis that he felt sorry for him. I refer to the 'poor bastard' conversation, between Ron and John, as related in John's evidence (ts 176), as discussed above at [70].
John's response to the contentions about receiving payment from Lee Bros and the like is, essentially, that those payments were only small scale remuneration and were solely related to his work in the meat processing operations of Lee Bros. As related by John, his farm work was always different and was treated differently within the family. Apart from the two cheques from Ron, this work was otherwise unremunerated.
The catalogue of long days and hard work on the farms, especially at Bullsbrook, by John over many years is, essentially, confirmed and reinforced by the evidence of Jonine. Her evidence, which I fully accept, explains, within a context of their relationship, the significant physical contributions that John made working alongside his father to the improvement and conducting of the Bullsbrook farm, effectively, by establishing that property as a viable cattle farm, adding to it and enhancing it over time. This was not a 9.00 am to 5.00 pm commitment. It was an afternoon, weekend and adult lifetime commitment of John to build up and improve those farming properties as part of the overall cattle operations.
Another significant cultural feature of the Lee family, confirmed, in effect, under Fay's evidence at the trial, was the pervasively expressed sentiment within this family (for instance, around the dinner table at mealtimes) that it would be the son who would end up with the farming land - rather than the daughters in the family. This sentiment was said to have been often communicated to John, from when he was a child and then later around the family dinner table and, indeed, likely to have been repeated across his adulthood at many family mealtimes. A corollary to that position is that John was told by Fay, and I would infer and find it likely to have been in the presence of Ron, that if John had been born a girl, Ron would not have acquired the family farms (ts 325).
Those sort of statements as I find were made to John by Ron and Fay, curious or even culturally grating as they might present when viewed in 2020, do echo sentiments that were not uncommonly expressed in farming families in earlier times last century.
Had Ron and Fay's daughters been active work contributors upon the family farms and made significant contributions by their labour or otherwise to their enhancement, there may then have been very significant rival considerations to evaluate at this trial. But there was no evidence to that effect.
Likewise, if the 2003 to 2005 estrangement between John and his father had not been resolved and the Bullsbrook farms had been sold off, then again distinct and difficult questions would then have emerged for an evaluation concerning the position of John. However, the facts in this trial as they have now been discussed and as are found chronologically collected in these reasons in Schedule 1 show that after John dropped out of university in 1983 (aged 19), effectively then, through until Ron's death in July 2016, when John was almost 53, that John's efforts, working alongside his father as they built up and developed the Bullsbrook farm and cattle operation, particularly from 1983 when neighbouring land was further acquired and then in 1991, when further neighbouring land was acquired to be incorporated within the farming lands and operations, were significant, valuable and largely unremunerated. After a 30‑month estrangement in 2003, John returned to, effectively, again devote himself exclusively to running the Bullsbrook farm and enhancement between 2006 and to date, all done by John in the legitimate expectation, as had been actively encouraged by both his parents over time, that one day the Bullsbrook farm would be his.
Having been put to the formal proof of his proprietary estoppel case by AET at this trial, on my view, John has amply discharged the burden of that obligation. He has established a proprietary estoppel in his favour in respect of the Bullsbrook farm (its fixtures and associated chattels, including livestock) against both Ron's estate and Fay.
Correlatively, I assess that it would be, in the circumstances, highly unconscionable for John not to be vindicated as regards his obtaining of the Bullsbrook farm beneficially from out of Ron's estate.
AET's claim against Fay and John
I must also reject AET's claim of situational undue influence by Fay over Ron. I find that although Ron suffered from a deterioration in his eyesight in his later years, John's evidence as to the events around the statutory compensation claim should be accepted. This was to the effect that John had read out the contents of these claim documents to his father and to his mother (ts 191 - 192) before they were submitted and that at the end they were both more than happy to sign them and to have them submitted. This amply refutes any breach of fiduciary duty contention against John vis-à-vis his father. In effect, John always acted as regards pursuing the statutory compensation with the full understanding and assent of Ron in the way of John's preparing, submitting and revising the compensation documentation. My assessment is that Ron remained cognitively competent at all times. I find Ron was fully alive to and fully understood what was then being done by John, acting then at his (and Fay's) behest in terms of the preparing compensation claim documents that were being submitted for them both (ie, for Ron and Fay) then at a level of over $7 million. I also conclude that Ron fully understood that a receipt of the partial compensation amount by the cheque was viewed as merely the opening gambit, in a longer compensation battle that was still to follow to obtain even greater compensation than this mere first payment amount. I reiterate in this respect that, whilst physically deteriorating, there is no evidence of any diminution in Ron's mental acuity as to business matters at critical times during 2015 and 2016. The evidence, in fact, is to the contrary on that issue.
I also reject as unfounded the suggestion of AET that Fay was exercising an undue dominion or influence over Ron by reason of his sight problems and age. I assess that as a naive submission, measured against the reality of a long, healthy and successful marriage relationship spanning almost 60 years.
As mentioned, Ron and Fay had married in 1956. Fay was some (almost) eight years younger than Ron, being born in 1935. She was better educated, having attended a secretarial college, whereas she related that Ron had left school after about grade five (ts 290).
Whilst it was open to AET to advance submit legal arguments grounded upon a legal presumption of situational undue influence arising around the circumstance of Ron's visual disability as encountered in his later years, a situational legal presumption of undue influence by Fay arising around the compensation application and the subsequent payment of the compensation instalment cheque into Ron and Fay's joint account, on my assessment, is strongly rebutted and negated after taking proper account of all the trial evidence.
In mid-2016, Ron and Fay were then verging on reaching their 60th wedding anniversary (having married in August 1956). I assess that relationship to have been a very successful, productive and mutually supportive partnership. On the evidence, I find that Ron, with wholly undiminished business acumen in 2016, having had the compensation claim documents read out to him by his son, was perfectly happy then for that compensation application and documents to be submitted by John for he and Fay to the Main Roads Department and, specifically, to be submitted as a claim jointly made then by he along with Fay. Furthermore, I assess that, still with full mental acuity, Ron was fully alive to the subsequent receipt of the $2.8 million compensation cheque that was made out payable to them both. Ron, I find, was more than alive to the conduct of Fay in, again with Ron's full assent, Fay paying that cheque into their joint bank account, rather than into one of Ron's sole bank accounts.
My assessment is that in the Ron/Fay relationship and irrespective of the registered legal holding of the Bullsbrook farm by Ron in his name alone, that as between them this did not at all diminish Ron's fully coherent wish to share with his wife of almost 60 years any compensation money payable upon the taking of a part of the Bullsbrook farm between them. As Fay had described the situation, in their marriage what was his was hers and vice versa (ts 293). That cultural sentiment is perfectly sensible and more than understandable, subsisting as between two people married almost 60 years. After the receipt of the part compensation, both Ron and Fay were, as between themselves, then of a mind to each give half of what they described between themselves as their respective shares to John - hence the further $1 million cheque drawn on the joint account by Fay with Ron's encouragement during June 2016 and subsequently paid by John to his own account. That was his parents' free and fully informed decision at the time.
On one view, John, having been long promised the Bullsbrook farm as his, might at mid 2016 have been somewhat aggrieved over the proceeds of a realisation of what was received compensation for the taken land being paid to anybody but him. Nevertheless, within the context of Lee family arrangements which, at the time, were fully cordial and workable as between Ron, John and Fay, a decision to gift John that money at the time, in effect, as an interim instalment was understandable. Nothing adverse arises out of it, in my assessment. There is no suggestion that Ron then had any level of insight towards his July 2016 unexpected fall, hospitalisation and passing that was soon to follow.
I find that any legal presumption of situational undue influence arising out of Ron's visual disability in his latter years vis-à-vis Fay has been fully rebutted on the trial evidence of John and Fay given about these issues. The cross claims against John and Fay by AET therefore fail.
Disposition
Consequently, John has succeeded in making good his proprietary estoppel claim against Ron's estate. AET's crossclaims against John and Fay have failed.
The parties will now be provided with the reasons for the purpose of the crafting final orders. They should also confer as to orders over costs orders and hopefully provide an agreed minute of orders to my associate within seven days of the publication of these reasons.
SCHEDULE 1
Date Event 18/11/1927 Ron Lee (Ron) is born 13/09/1935 Fay Lee (Fay) is born 04/10/1955
Ron purchases land at Talbot Road, Hazelmere, with his brother, Basil Lee
11/08/1956 Ron and Fay are married 13/04/1958
Shana Russell (nee Lee) is born to Fay and Ron
22/07/1958
Ron purchases property at Oakover Road, Herne Hill with his brother, Basil Lee
06/09/1960
Ron purchases property in Herne Hill known as Millendon
02/06/1961
Ron sells interest in property at Oakover Road to his brother, Basil
02/06/1961
Ron purchases balance of interest in property at Talbot Road, Hazelmere from his brother, Basil
02/06/1961 Ron purchases property at Victoria St, Midland 22/07/1961 Nerida Puangkham (nee Lee) is born to Fay and Ron 27/12/1961 Ron sells property at Talbot Road, Hazelmere 17/01/1962
Ron purchases additional parcel of land that is incorporated into Millendon property
12/06/1962
Ron enters into agreement to purchase properties known as Farndon Downs
21/08/1963
John Lee is born to Fay and Ron
09/04/1965
Ron becomes registered proprietor of property known as Farndon Downs
29/08/1966
Fay becomes registered proprietor of property at May Street, Rockingham
02/11/1967
Ron becomes sole registered proprietor of 320 Great Eastern Highway
12/09/1968
Ron becomes registered proprietor of properties, making up (at that time) the [Bullsbrook] farm
06/12/1968
Ron sells Millendon property
January 1976 Fay involved in serious car accident November 1981 John finishes secondary school at Christchurch Grammar February 1982 Fay acquires property at Arney Place, Yanchep February 1982
John commences undergraduate studies at University of Western Australia (UWA)
01/12/1982
John completes some first year units from Bachelor of Commerce, passing Economics 100, Accounting 100, LF Business 100
Early 1983
John withdraws during the first term of 1983 of UWA commerce degree
28/10/1983
Ron acquires property adjacent to the [Bullsbrook] farm by becoming the registered proprietor of Lot 1663 on Deposited Plan 103482 being the whole of the land in Certificate of Title Volume 1457 Folio 667
July 1985
Fay sells property at Arney Place, Yanchep
26/06/1987
Fay registers caveat D503981 on the title to Farndon Downs, 320 Great Eastern Highway, Victoria Street and farm properties purchased by Ron on 12/09/1968
15/09/1987
Titles comprising Farndon Downs transferred to new registered proprietor
15/09/1987
Ron and Fay become registered proprietor of property at 6 Narran Place, Midland
11/11/1987
Fay becomes registered proprietor of property at Unit 1/232 Marine Parade, Cottesloe
07/10/1987
Fay becomes registered proprietor of property at 17 Narran Place
1988 John excluded from commerce degree at UWA 21/07/1989
Fay becomes registered proprietor of property at Unit 7/232 Marine Parade
08/09/1989
Ron and Fay become registered proprietor of property at Unit 4/232 Marine Parade
1990
John and Jonine commence living on the [Bullsbrook] farm
24/01/1991
Ron expands the [Bullsbrook] farm by becoming registered proprietor of Lot 1773 on Deposited Plan 108997, being all the land in Certificate of Title Volume 1821 Folio 379
24/01/1991
Ron expands the Farm by becoming registered proprietor of Lot 3065 on Deposited Plan 254607 being the whole of the land in Certificate of Title Volume 1821 Folio 380
1994 Jesse Lee born to John and Jonine 16/06/1994 Fay sells property at Unit 7/232 Marine Parade 11/10/1995 Fay sells property at Unit 4/232 Marine Parade 1996 Evie Lee is born to John and Jonine 1996
John begins studies for the Graduate Diploma in Financial Markets from the Securities Institute of Australia
17/06/1997
Ron and Fay become registered proprietors of 214 Marine Parade, Cottesloe as joint tenants
27/07/1999
John completes requirements for the Graduate Diploma in Financial Markets programme
03/11/1999
Ron and Fay sell property at 6 Narran Place
2000
John begins studies for the Graduate Diploma in Applied Finance and Investment from Securities Institute of Australia
12/03/2002
John completes Graduate Diploma in Applied Finance and Investment from Securities Institute of Australia
March 2003
John and Ron have a disagreement. John ceases working on the [Bullsbrook] farm and moves out of the house on the [Bullsbrook] farm
12/02/2004
Fay sells property at 17 Narran Place
25/12/2005
John and Ron meet at Ron and Fay's house and subsequently John returns to work on the [Bullsbrook] farm
05/06/2008
Ron executes standard will form in the presence of two witnesses
02/06/2015
Taking order issued by Minister for Transport for parts of the [Bullsbrook] farm
10/06/2015
As a result of Main Roads acquiring part of the [Bullsbrook] farm, Ron becomes registered proprietor of:
- Lot 177 on Deposited Plan 405448, Volume 2882 Folio 151
- Lot 172 on Deposited Plan 405439, Volume 2882 Folio 146
- Lot 176 Volume 2882 Folio 150
26/08/2015
As a further result of Main Roads acquiring part of the [Bullsbrook] farm, Ron becomes registered proprietor of multi-lot title, being Certificate of Title Volume 2882 Folio 148
08/12/2015
Claim for compensation submitted to Main Roads Western Australia
11/02/2016
Sean Casey, Land Acquisition Manager of Main Roads Western Australia, writes to RW & FE Lee with formal offer in accordance with the provisions of Land Administration Act [1997]
04/04/2016
Ron and Fay execute a rejection of offer of compensation in accordance with section 219 of the Land Administration Act 1997
31/05/2016
Fay and Ron execute deed poll for partial discharge of claim for compensation
15/06/2016
Ron and Fay receive cheque for $2,857,741.56 from State Solicitor's Office and copy of executed deed poll
24/06/2016
John deposits $1 million cheque in NAB bank account
26/07/2016
Ron dies in Hollywood Private Hospital
27/06/2017
Settlement deed executed resolving CIV 2605 of 2015
24/04/2018
Letters of Administration with Will annexed of the Estate of Ronald William Lee granted to Australian Executor Trustees Limited
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to Justice Kenneth Martin4 DECEMBER 2020
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