Maio v Sacco

[2009] NSWSC 413

CITATION:	Maio v Sacco [2009] NSWSC 413
HEARING DATE(S):	8 and 9 April 2009
JUDGMENT DATE :	21 May 2009
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Refer to paras 60-61 of judgment.
CATCHWORDS:	REAL PROPERTY - claim for contribution for improvements carried out on property – equitable accounting – defendant conceded that plaintiff entitled to claim contribution for reasonable value of work he personally performed – plaintiff entitled to contribution from defendant for his expenditure and for expenditure saved by plaintiff’s personally performing work to the extent the expenditure made or saved added value to property – question whether plaintiff entitled to contribution for work done personally not decided in light of defendant’s concession - AFFIDAVITS - obligation of deponents to tell the whole truth
LEGISLATION CITED:	Conveyancing Act 1919 (NSW) Limitation Act 1969 (NSW) Partnership Act 1892 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Batard v Hawes (1853) 2 EL & BL 287; 118 ER 775 Dimes v Arden (1836) 6 N&M 494 Leigh v Dickeson [1884] 15 QBD 60 Brickwood v Young (1905) 2 CLR 387 Squire v Rogers (1979) 39 FLR 106 Forgeard v Shanahan (1994) 35 NSWLR 206 Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,947 McMahon v Public Curator of Queensland [1952] Qld SR WN 197 Cardinaels-Hooper v Tierney (1995) 7 BPR 14,435 Hovenden & Sons v Millhoff (1900) 83 LT 41 Keogh v Dalgety & Co Ltd [1916] HCA 69; (1916) 22 CLR 402 Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374 Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Pizzale v Gumina Enterprises Pty Ltd (1994) 13 WAR 88 United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1
TEXTS CITED:	Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) Peter Butt, Land Law 5th ed (2006)
PARTIES:	John Maio v Antonio Sacco
FILE NUMBER(S):	SC 4995/04
COUNSEL:	Plaintiff: G Foster Defendant: P Barham
SOLICITORS:	Plaintiff: Phillip A Wilkins & Associates Defendant: Wood Marshall Williams Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE

Thursday, 21 May 2009

4995/04 John Maio v Antonio Sacco

JUDGMENT

1 HIS HONOUR: The plaintiff and the defendant are co-owners of a property at Tristram Road, Beacon Hill. They bought the property in 1992. They subdivided the property in 1996 and sold the front portion. They retained the rear portion which is vacant land. The plaintiff wanted to construct a house on the rear portion. The defendant disagreed. Building works had to be carried out on the property to comply with the council’s conditions for approval of the subdivision. These works were carried out by the plaintiff or persons engaged by him. The works were completed by early 1996.

2 In these proceedings the plaintiff claims damages or equitable compensation for the defendant’s refusal to agree to the construction of a house on the rear lot. He seeks contribution from the defendant for improvements and maintenance carried out on the property. He seeks an order for the appointment of trustees for sale of the rear lot pursuant to s 66G of the Conveyancing Act 1919 (NSW). There is no issue that he is entitled to an order under that section. Insofar as the plaintiff’s claim for contribution is brought in contract or quasi-contract the defendant pleads that the claim is barred by s 14 of the Limitation Act 1969 (NSW). The plaintiff’s claims fall into six distinct categories. Only one claim raises a serious issue, namely, the plaintiff’s claim for contribution for work done and expenses incurred in carrying out building works in connection with the subdivision. The other claims are either statute–barred or without merit or both. I will deal with the principal claim first.

First Claim

3 The plaintiff’s principal claim is for moneys expended and work done in connection with the subdivision of the property. All of the expenses and the work were incurred and done more than six years before proceedings were commenced. The defendant does not dispute that the subdivision increased the value of the property and this increase in value is reflected in the value of the lot retained by the parties. On the basis of undisputed valuations, the plaintiff contended that the subdivision increased the value of the lot retained by $72,500. There is no issue that the plaintiff is entitled to an order for the appointment of trustees for sale. The plaintiff claims contribution of 50 per cent of $55,935, or $27,967.50, in respect of moneys expended and work done in connection with the subdivision.

4 At common law a co-owner of property is entitled to contribution from his other co-owner for moneys expended in improvements, repairs or maintenance, irrespective of the extent to which such expenditure increases the value of the property if there is an express contract to contribute, or if the expenditure is made on behalf of both owners at the express or implied request of the other co-owner. At common law contribution could be recovered under the common money count of money paid to the defendant’s use and at his request (Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) at pp 43-45; Batard v Hawes (1853) 2 EL & BL 287; 118 ER 775 at 296). Where the expenditure was made to discharge a debt or liability for or to which both co-owners were subject, the law would imply a request (Dimes v Arden (1836) 6 N&M 494; Leigh v Dickeson [1884] 15 QBD 60 at 68-69). A request would not be implied from the fact that the property would fall into dilapidation if the expenditure were not made, nor from the fact that the other co-owner showed no interest in the maintenance of the property (Leigh v Dickeson). In the present case any claim for contribution at law is statute-barred.

5 In a partition suit, a co-owner has a separate right of contribution in equity for expenditure on repairs or improvements which increase the value of the land. That right is not dependent on the expenditure being made at the express or implied request of the other co-owner. Contribution in equity between co-owners cannot be recovered at the time the expenditure is incurred. Contribution is available when the relationship between the parties is terminated in a partition suit. The same right of contribution in equity arises on the sale of a property in co-ownership following the appointment of trustees for sale pursuant to s 66G of the Conveyancing Act or where the property is resumed (Leigh v Dickeson at 65, 67; Brickwood v Young (1905) 2 CLR 387; Squire v Rogers (1979) 39 FLR 106 at 125; Forgeard v Shanahan (1994) 35 NSWLR 206; Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,947).

6 On an equitable accounting, the co-owner will be allowed the lesser of the amount of expenditure on improvements or repairs and the amount by which such expenditure has increased the value of the property. Provided repairs add value they can be the subject of the claim for contribution even if they do not amount to improvements (Ryan v Dries at [66], [67], [71]). However, expenditure on maintenance or repairs that do not add to the capital value of the land cannot be claimed (McMahon v Public Curator of Queensland [1952] Qld SR WN 197 at 204; Cardinaels-Hooper v Tierney (1995) 7 BPR 14,435 at 14,444; Peter Butt, Land Law 5th ed (2006) at [1427]).

7 No authority was cited where an allowance has been made for work done by a co-owner personally which has improved the property, as distinct from the co-owner having spent money on work which has improved the property. The cases speak of a co-owner who improves the land obtaining contribution for expenditure to the extent the expenditure adds value to the land. In Cardinaels-Hooper v Tierney, Cohen J denied a claim for the outlaying of time and effort by a co-owner in effecting improvements and repairs. The principal reason for denying that claim was that the earlier authorities had allowed contribution only for expenditure; although claims for the value of work done had not earlier been considered and rejected. His Honour was also of the view (at 14,444) that it would be difficult to quantify the value of time spent. Neither party cited Cardinaels-Hooper v Tierney. Instead, the defendant conceded that the plaintiff was entitled to claim contribution for the reasonable value of work he personally performed. (There was one qualification to this with which I deal in para [8] below.) The defendant did not submit that the plaintiff could only recover for expenditure and not for personal labour. If the matter were free from authority it would seem to me to be arguable that if one co-owner carries out repairs or improvements with his own labour rather than paying a third party, he should be allowed the expense he saved in performing the work himself, or the increase in value attributable to the work, whichever is the less. The value of the co-owner’s time spent in carrying out the work could be measured by what it would reasonably cost to engage a third party to carry out the work to the same standard. In light of the approach taken by the defendant I need not decide whether I should follow or depart from the approach taken by Cohen J in Cardinaels-Hooper v Tierney. I will act on the defendant’s concession.

8 The defendant submitted that the plaintiff was not entitled to contribution either for expenditure made or labour performed because the plaintiff had not told him that he was proposing to do the work and make the expenditure. I do not accept that the defendant was unaware of what the plaintiff was doing. In any event, the plaintiff’s right to contribution in equity does not depend on the defendant’s prior knowledge of what the plaintiff was doing. It depends on the plaintiff’s expenditure, (and arguably the plaintiff’s work), adding to the value of the property.

9 The right to an equitable accounting does not arise at the time expenditure is made or work done, but arises only in a partition suit or an application for the appointment of trustees for sale or on a similar event which terminates the co-ownership of the land. Accordingly the defendant does not plead the Limitation Act as a bar to the plaintiff’s claim for contribution in equity. Nor does the defendant say that equity would apply to the statute by analogy. Nor does he rely upon a defence of laches. No such defences would be available to the claim for contribution in equity.

10 The plaintiff deposed that he “performed work summarised at steps A through L” in annexure CC preparatory to the subdivision. Annexure “CC” was headed “Expenses carried out for dual-occupancy subdivision of land at [No.] Tristram Road, Beacon Hill”. The steps and alleged expenses were described as follows:

EXPENSES CARRIED OUT FOR DUAL-OCCUPANCY SUBDIVISION OF LAND AT 39 TRISTRAM ROAD, BEACON HILL

A)Demolish existing granny flat and garage.
Material to be taken off-site and make good.$2,900.00

B)Excavate trenches for stormwater pipes and prepare ground for hardstanding areas.$1,800.00

C)Finish and place concrete on proposed hard standing areas as per plans$7,987.00

D)Construct Detention Tank including excavations into iron rock and soil taken away in accordance to Plan No. 12248/2B$15,630.00

E)Connection of sewer to Water Board standard requirements
Cap-off existing lines, re-connect water lines to northern side at rear of existing house, cap off existing water at rear block
Connect new water lines and installation of meter to newly created block$4,300.00

F)Installation of pole and conduit pipe for Electricity connection
Also supply and install Telecom conduit as required.$1,900

G)Lay stormwater pipes as per plan, supply and install 130 x 100 x 6 Galv. R H S in council nature strip and excavate trench into rock$2,973.00

H)Construct front and rear fence as required by Council inspector$2,233.00

I)Purchase and lay turf to Council requirements$685.00

J)Draw final survey plan of services and submit to Council with final linen plan for approval.$750.00

K)Works executed drawings of detention tank and engineers report submitted for Council approval$475.00

L)Plan approval paid to Council for the release of final linen plan.$455.00

Total$42,088.00

11 The balance of $13,847 of the claim for contribution to $55,935, was outlined in a schedule annexed to a further affidavit. The plaintiff deposed of this schedule that it set out “costs, fees, charges and costs I paid for”. The schedule stated:

“ Fees Paid For Approval of Plans

Sydney Water 6/12/95 $118.60

Outstanding Fees as of 1/12/95 $12,744

House Replacement Insurance $985

Total $13,847.60 ”

12 The “outstanding fees” of $12,744 were described as follows:

“ Fees Incorporated For Dual Occupancy
39 Tristram Road Beacon Hill
By John Maio
JMDCAM Group fees for Drg Number 1016,
1017, 1018, 1032 and including all
sketches required for submission of DA
& BA approval eg. S.R.E.P. 12. including
environmental impact statement by council. $4800.00
Landscape Architect to develop plan for DA
approval $800.00
Warringah Council fee for DA $422.00
Bank Charges $9.00
Warringah Council fees for BA $350.00
Hydraulic Engineer Stormwater Design of
Detention Pit $900.00
Warringah Council fees for Kerb damage &
inspection fee $41.00
Sydney Water fees for application to allow
subdivision for sewer & water $300.00
Warringah Council fees for DA of subdivision
approval $200.00
Sydney Water fee to review 88(B) Instrument $40.00
Sewer Engineer arrange sewer design & prepare
application for Sydney Water $750.00
Warringah Council fees for approval to create
new allotment of subdivision $393.00
Sydney Water fee for Certificate subdivision
& bulk water charges $629.00
Surveyor to carry out subdivision & prepare
linen plan for Council approval $1860.00
Solicitor to prepare 88(B) instrument and final
Account $1250.00
TOTAL $12744.00
Note: Not included is any of my cost for time incurred to obtain the relevant information that was required to allow the subdivision of the dual occupancy to proceed.”

13 The first charge, (Item A), is for $2,900 for the demolition of the existing granny flat and garage and removal of material and making good the site. In annexure CC it is described as an expense. The claim was supported by an annexure to the affidavit which was a photocopy of what appears to be an invoice from Seaside Excavations & Bobcat Hire for $2,960. It emerged in cross-examination that the document was not an invoice but a quotation. The original document had had the word “quotation” on it. The plaintiff admitted using correction fluid to remove the word in order to make the document look like an invoice. It was put to the plaintiff that his cheque butts did not show any payment to Seaside Excavations & Bobcat Hire for $2,960. At one point in his cross-examination the plaintiff said that he did not recall drawing a cheque but “I may have paid that one with cash; I don’t know; I can’t remember this.” Later in his cross-examination the plaintiff said that “some of this work here was work that was – there was work that I’d done for this person beforehand, and he had accepted to take, to come back and do some of this work for me.” He said that he probably would have paid Seaside Excavations & Bobcat Hire some money in cash, but he did not have a record of how much he paid. Later again in his cross-examination the plaintiff said that he did not pay Seaside Excavations & Bobcat Hire and that the work was done as a favour to him.

14 The same favour was done in relation to the second item of “expenses” set out at annexure CC, namely, $1,800 for the excavation of trenches for stormwater pipes and to prepare ground for hard standing areas (Item B). This claim was supported by another document which appeared to be an invoice from Seaside Excavations & Bobcat Hire, but which was in fact a quotation. Initially in cross-examination the plaintiff said that he paid Seaside Excavations & Bobcat Hire $1,800 “through that quotation”. He admitted that he did not pay by cheque. When asked if he paid by cash, the plaintiff said that “it was work that he’d owed me and he carried it out that way.” He gave the following evidence:

“ Q. What work did he owe you?

A. I had some jobs that when at the time I was working at the railway, and I gave him some work at that stage, and he did some work there for the railway, and this was in return, some sort of a favour to me. ”

He later said:

“ No, I didn’t pay him any money. He done the work as a favour to me. ”

15 There is no dispute that the work in question was done. The defendant obtained a quote from another builder in May 1996 for the work which had then been completed. That quote also included an amount of $2,900 for the demolition of the existing garage and granny flat and the cutting off of existing services. Had the plaintiff paid for these works he would have been entitled to contribution for them.

16 However, the plaintiff neither expended money, nor did work. He gave no evidence that his principal, apparently “the railways”, gave informed consent to his receiving a favour from Seaside Excavations & Bobcat Hire in return for his suggesting that Seaside Excavations & Bobcat Hire quote for work at the railway. Without such informed consent the so-called favour would be tantamount to a bribe (Hovenden & Sons v Millhoff (1900) 83 LT 41 at 43; Keogh v Dalgety & Co Ltd [1916] HCA 69; (1916) 22 CLR 402 at 418; Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573 at 575; T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374; Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256 at 1260). The so-called favour benefited both parties. However, and unsurprisingly, no authority was cited in which equity has allowed contribution for half the value of such a favour as was shown to the plaintiff. The true nature of the plaintiff’s arrangement with Seaside Excavations & Bobcat Hire was concealed until his cross-examination. He claimed contribution on the basis that he had incurred an expense, but no expense was incurred. He cannot be heard to claim contribution on an alternative basis when further investigation might disclose that the claim is barred for reasons of illegality or would be defeated for unclean hands.

17 A disturbing aspect of the plaintiff’s evidence is that nowhere in his affidavits did he disclose the fact that he had altered the quotations to give them the appearance of invoices, nor that he had not paid the amounts shown on the quotations. That is particularly concerning given that in annexure CC the sums claimed in respect of these items of work were described as expenses. He had not incurred expense in respect of these items. In this and other respects the plaintiff’s affidavit concealed the truth.

18 The next item claimed (Item C) was $7,987 for finishing and placing concrete on proposed hard standing areas. This was broken up into separate items, all but one of which involved alleged payments to third parties. There was no invoice, no receipt and no other evidence of any payment beyond the bare assertion in a schedule of charges for two items of $185 and $680 described as “Kim Bricky tip for filling sand” and “tipping fee to Terry [sic] Hills & Ingleside”. Two of the charges for $500 and $600 respectively were in relation to moneys allegedly paid to Peter’s Excavations Pty Ltd. The plaintiff produced an invoice from Peter’s Excavations of $500 and there was no challenge to it. He also claimed to have paid an additional $600 to Peter’s Excavations ($100 by cash) but there was no corroborating evidence. As I do not accept the plaintiff as a reliable witness I am not satisfied that the further payment of $600 was made. Three further payments of $280 each were made to Wilson’s Waste and are not the subject of challenge. Nor was any challenge made to a claimed payment of $845 to Aquila Steel. The plaintiff claimed to have paid Boral Concrete $2,484 but produced three invoices totalling $1,652.40. I am not satisfied that he paid any more than that sum to Boral Concrete. I accept that he made payments totalling $4,337.40 in respect of this item of work. The plaintiff also claimed to have paid a firm called BJ Concreting $1,353 for supplying labour to prepare, lay and finish concrete on the area. The invoice was not paid by cheque, but there being no challenge to the authenticity of the invoice and as it was common ground that the concreting work had to be done, I think it likely that the plaintiff incurred the expense shown on that invoice. It was probably paid by cash. I therefore accept that the plaintiff incurred expenses totalling $5,690.40 in respect of Item C.

19 The fourth item of work (Item D) was what was described as an expense of $15,630 for the construction of a detention tank including excavation into rock and the removal of soil. This charge was itself made up of 11 separate items of work. The defendant submitted that the plaintiff should receive no more than an amount for which another builder, a Mr Robert Lowe trading under the name R G L Building Services, quoted for the carrying out of the works required for the subdivision on 27 June 1996. In respect of the construction of the stormwater detention tank, Mr Lowe quoted an amount of $8,600, but this was on the basis that only soil would need to be excavated and that if rock were encountered, an extra $80 per cubic metre would be charged as a variation. Rock was encountered. There was no direct evidence of the quantity of rock excavated. However, it is clear that if Mr Lowe had done the work, more than $8,600 would have been charged for it. Photographs which were tendered show that a substantial amount of rock had to be excavated, and it is possible to estimate the quantity from the photographs and plans.

The plaintiff’s claim of $15,570 was only minimally supported by third party documentation. He produced an invoice for the hire of an excavator for $4,200 from Stanton Earthmoving & Plant Hire Pty Ltd. He admitted that he did not pay that amount. He paid $2,000. He also said that “ this was a favour he did in return for what I have done with him ”. Again, his affidavit did not disclose the fact that he had not paid the full amount of the invoice, although the full amount was included as an expense for which contribution was sought.

20 The plaintiff also annexed to his affidavit a copy of an invoice from J & E Cocksedge which, on its face, appears to be in the amount of $1,660. It appears from the original of the invoice that the number “1” in front of the figure $660 is in a different pen. At one point in his cross-examination the plaintiff admitted that he did not pay the full amount of the invoice, although he later retracted that evidence. He said that he paid $1,000 in cash, but there is no receipt. A cheque butt dated 1 March 1996 showed a payment to J & E Cocksedge of $660. Notwithstanding the seriousness of a finding that the plaintiff altered the invoice from $660 to $1,660, I am satisfied that that is what happened. In making that finding I take into account that the plaintiff admitted altering other documents by covering up the word “quotation” so that the document appeared to be an invoice. Given the evidence of payment by cheque of $660 and the apparent differences in pen on the invoice in question, I am satisfied that the document was altered by the plaintiff.

21 There is no corroboration of many of the other charges which the plaintiff sought to make for this work. At least one charge, namely $2,068 for Boral Concrete was admittedly a doubling-up of the previous charge for moneys paid to Boral Concrete. Whilst some expenses were undoubtedly incurred in respect of this work, I am simply not satisfied on the plaintiff’s own say-so of what those expenses were.

22 In purported corroboration of this charge the plaintiff produced a document called an invoice addressed to himself and the defendant and which was said to be from “JMD CAM Group”. The so-called invoice said “supply labour and material for permaform walls 32mpa (REO: for floorslab and roof. Concrete to construct detention tank as per DR-12248 and engineer’s specification including excavation into red iron rock. Total $15,570.” There are a number of similar so-called “invoices” from JMD CAM Group for work done in connection with the subdivision. They were all undated. They were all annexed to the plaintiff’s affidavit sworn 15 February 2007 and related to work allegedly done in 1995 and 1996. The annexures give the impression of being invoices brought into existence shortly after the work was done. The plaintiff said in cross-examination that JMD CAM Group is a business name under which he carries on business. When cross-examined about a similar invoice the plaintiff said:

“ All these documents came into existence when I prepared the affidavit because on a request of [the plaintiff’s solicitor] , I can’t do anything unless we have got proper documentation. So therefore some of this was – like I said, it was not all black and white, like you think it should be, and I didn’t have secretarial staff to produce all this documentation that you are asking me about here in this court today. ”

23 In other words, all of the so-called invoices charging for work done by JMD CAM Group were brought into existence at the time the plaintiff prepared his affidavit in early 2007 to give verisimilitude to his claims. It is true that nowhere in his affidavit did the plaintiff say that he incurred costs as shown on the invoices. He swore that:

“ I performed work summarised at steps A through L (“CC”) work preparatory to the subdivision and in compliance of the consent commissions [scil. conditions]. Documents supporting steps A through L are annexed as follow:

... ”

24 The so-called invoices are included in the annexures. The invoices are not dated. However the evident purpose of creating and annexing the invoices was to suggest that the documents were contemporaneous documents and thus supported the claim. Having been told by his solicitor that he needed “proper documentation” the plaintiff set about providing it. When asked why he did not say in his affidavit that he had prepared the documents at the time he prepared his affidavit, the plaintiff said “I was not advised in any other way so I did it the best way I could.”

25 It bears repetition that in swearing or affirming an affidavit a witness says that the affidavit contains not only the truth, but the whole truth and nothing but the truth. In ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J (as his Honour then was) said (at 197):

“It cannot be emphasised too greatly that one's obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness ... to only give the court a half truth. ”

26 I do not know whether the plaintiff’s solicitor was aware that the undated invoices annexed to the affidavit were prepared at the same time as the affidavit. I am not in a position to make any finding about the plaintiff’s solicitor’s knowledge of these matters, but it does appear from the plaintiff’s evidence that his solicitor should be invited to make submissions as to whether I should refer this matter for investigation by the Law Society Council or the Legal Services Commissioner.

27 Included in the claim of $15,570 for construction of the detention tank was a sum of $1,500 said to have been paid to Permaform Australia for the permanent formation of the walls of the tank. The plaintiff belatedly tendered documents from Permaform Australia showing the delivery of the sections of the tank and an invoice for $1,500 in respect of them. I would accept that item of charge. However, this, together with the sums of $660 paid to J & E Cocksedge, and $2,000 paid to Stanton Plant Hire is the only corroboration of this claim.

28 Whilst I cannot accept the details of the plaintiff’s evidence as being reliable, it is clear that the work was done and that rock was encountered. The defendant did not dispute that a reasonable cost for the work in construction of the detention tank would be in accordance with the quotation that the defendant received in June 1996 of $8,600 plus $80 per cubic metre if rock were required to be excavated. As I have said, there was no direct evidence as to the amount of rock excavated. So far as I can assess from photographs which were tendered and from the drawing 12248-1 and annexure WW, approximately 15m³ of rock was excavated. I therefore allow $9,800 in respect of this work.

29 The next charge was $4,300 to connect the sewer to the water board and associated works described in para E of annexure CC (see para [10]). In support of this claim the plaintiff produced an invoice from Grandview Prestige Plumbing Pty Ltd apparently in the sum of $4,191 and claimed an extra $109 as an extra fitting which he supplied for water connection to the old house. The defendant challenged the authenticity of the invoice claiming that the invoice was originally in the sum of $1,191 and that the plaintiff had altered the invoice by adding a figure “3” to one of the items in the invoice and amending the figure for the total from 1 to a 4. The plaintiff did not produce the original of the invoice on discovery or in the proceedings. Initially he refused to accept that the document he produced was a photocopy and not the original, but after an overnight adjournment he accepted that the document was a photocopy. As I understood his evidence, he suggested at one point in re-examination that the original documents may have been lost either in the Local Court proceedings or in the hands of lawyers. However, he later accepted that the document was part of his documentation which he sent for the first time to a firm of solicitors to be produced to the Local Court. He had no explanation as to why that documentation was a photocopy rather than an original invoice. The invoice stated that there was a charge of $3,970 “as per quote”. The quote was not produced. On its face, the invoice totalled $4,191, but a cheque was drawn to Grandview Prestige Plumbing for $1,191. The plaintiff said that he paid “some cash” to Grandview Prestige Plumbing but said that he could not remember how much cash he paid.

30 Whilst I have doubts as to the authenticity of the invoice, I am not prepared to say that the invoice has been altered by the plaintiff. The reason for that is that Mr Lowe’s quote of 27 June 1996 included an amount of $3,600 to extend the water board’s sewerage main to the proposed new allotment. This is the same work described in the invoice. If one builder at about the same time was quoting $3,600 for the work, it is more likely that the other builder was quoting $3,970 rather than $970.

31 On the other hand, I am not satisfied as to the additional charge of $109 for which there is no corroborating material. I allow $4,191 for this work.

32 In item F the plaintiff claimed $1,900 for the installation of a pole and conduit pipe for an electricity connection and the supply and installation of a telecom conduit. He annexed a quotation (to which he had added in pen the word “invoice”) for $1,550 in respect of the former work and made his own charge of $350 in respect of his installation of a telecommunications conduit. Mr Lowe quoted $700 for the same work. There is no evidence of how much the plaintiff in fact paid in respect of this work. I am not satisfied that the plaintiff either incurred or saved any expense greater than $700. I allow that sum.

33 The next item G was for an amount of $2,973 for laying stormwater pipes in the council nature strip and excavating trench into rock. The only support for this charge was a so-called invoice prepared by the plaintiff at the time he prepared his affidavit. He did the work himself. Mr Lowe’s quote for what appears to be the same work came to $1,700. I accept that this was an expense that the plaintiff saved and allow that sum in respect of item G.

34 In item H the plaintiff claimed $2,233 to construct front and rear fences. In item I he claimed $685 to purchase and lay turf to council requirements. Mr Lowe quoted $2,600 for this work. The charges include two items of $603 and $685 for work done by the plaintiff supported only by the so-called invoices from JMD CAM Group. I accept that the plaintiff saved an expense of $2,600. I do not accept his claim in any greater sum.

35 In item J the plaintiff claimed $750 for drawing the final survey plan of services and submitting the same to the council with the final linen plan for approval. That sum was made up of an invoice from a firm of consulting surveyors and planners of $490, which is not challenged. The plaintiff himself produced an invoice for $260 for drawings which he made. He did not identify the drawings and I am not satisfied as to whether $260 is a reasonable charge for the work which he claims to have done. I allow $490 in respect of this item.

36 There was a further invoice for $140 for the inspection by a consultant of reinforcement for the lid of the detention tank. This formed part of a claim of $475 under item K. The sum of $140 is not challenged and I accept it. There is no corroboration of the balance of the claim, which I reject.

37 In item L the plaintiff claimed $455 for moneys paid to the council to obtain the release of the final linen plan. This claim was not corroborated. The plaintiff obtained leave to reopen to tender some receipts from Warringah Council. Included in the receipts was a receipt for $403 paid for the release of the linen plan and I allow that sum.

38 In summary, in respect of the work set out in annexure CC, I accept that the plaintiff incurred expenses or carried out work to the value of $25,714.40 for which he is entitled to contribution from the defendant. (This is the sum of the amounts allowed in paras [18], [28] and [31]-[37].) This is less than the amount quoted by Mr Lowe. But that is because I allow no contribution for work which the plaintiff did not do himself and for which he incurred no expense – in other words for the so-called favours.

39 The claim of $13,847.60 set out at para [11] included a sum of $985 for house replacement insurance. This was insurance which the plaintiff claimed to have paid on the house which was sold in 1996. It does not add to the value of the property retained and is not allowable on an equitable accounting.

40 There was little corroborating documentation for the charges amounting to $12,744 as claimed above (see para [12]). The plaintiff claimed $4,800 for his own fees but there was no evidence of how much time was spent by him in carrying out the work for which that charge was made. Nor is there evidence of how much would have been incurred had the sketches been prepared by a third party. The plaintiff produced receipts totalling $2,775 from the council and from Sydney Water for various matters covered by the schedule and I allow that sum. As to the balance of the claim I can only say that the sums allegedly expended or saved have not been proved.

41 The plaintiff also claims to be entitled to $4,363 as a fee for supervising work. It appears to me that much of the work was carried out by him. The evidence does not establish that there was any need for supervision or what a reasonable cost of such supervision would have been.

42 The plaintiff also claims to have spent $684 in registering the linen plan at the Land Titles Office. That was not disputed and is allowed.

43 In summary therefore the plaintiff is entitled to contribution from the defendant for the total of $25,714, $2,775 and $684 ($29,173). The defendant is entitled to an offset of $1,819 for water rates which the defendant paid, reduced by $118.60 for one payment made by the plaintiff. The plaintiff is entitled to contribution of half of $27,473 ($13,737) from the defendant’s share of the proceeds of sale of the property.

44 I will hear the parties on whether interest should be allowed on that sum and if so at what rates.

Second Claim

45 The plaintiff claims damages or equitable compensation for the defendant’s refusal to agree to construct a dwelling on the rear of the property on the land which became a separate lot after subdivision which the parties retained. The plaintiff ultimately identified the loss allegedly suffered as a result of the defendant’s refusal as amounting to $19,702 before interest. The plaintiff claimed damages or equitable compensation of half this sum.

46 The plaintiff gave evidence that in mid to late 1992 he proposed to the defendant that he draw plans and submit them to council to get approval to construct a house on the back of the then unsubdivided property which could be rented out to repay the loan the parties had both taken out in order to acquire the property. According to the plaintiff the defendant said “Yes – let’s go ahead and do that”. In due course a development application was submitted and approved to allow for the construction of a single-storey dwelling on the back of the then unsubdivided block. Later, according to the plaintiff, he said to the defendant “Look, there’s been a ruling that enables us to subdivide the land into two properties of fair shares. We can keep one each, or sell up and go our separate ways. Or we could also keep them and rent them both out and then sell up when the market is more favourable.” The plaintiff deposed that the defendant agreed to this. Both parties signed a development application which led to the council granting its conditional approval on 19 October 1994 to the subdivision of the land. The prior development application to the construction of a dwelling on the rear of the property had been given on 10 March 1994. According to the plaintiff the defendant said to him “You go and get a loan approved and we can build the house”. The plaintiff obtained conditional approval for an advance of $372,220 from the Greater Building Society. This loan was to pay out the existing mortgage and to provide $125,000 towards the cost of construction. That amount was not sufficient to pay for the cost of construction of a second dwelling. The plaintiff obtained a quote from a builder (only part of which was tendered in evidence), which included an estimate to carry out building works to construct a dual-occupancy dwelling on the property for $156,555. It is not clear from the single page of the quote which the plaintiff tendered what work was included and what was excluded from the estimate. The plaintiff said that the loan of $125,000 would have been sufficient to have paid for all of the works which he and the defendant could not do between them.

47 However, nothing was finalised between the parties. The defendant considered there was insufficient equity in the property to borrow the amount of money that they would need in order to develop the property. He had recently lost money on a development at Frenchs Forest and considered the risks of a development of the Beacon Hill property were too high to warrant proceeding further. There was no agreement on the appointment of a builder, or on precisely what work was to be done by a builder to be engaged, or what work was to be done by the plaintiff or the defendant. The defendant did not agree to the terms of a loan available from the Greater Building Society. There was no agreement as to when any work would commence or who would supervise the work. There was no agreement on whether the subdivided lot would be sold after a house was constructed or whether the house would be rented. Either party was free to withhold his assent to proceeding further.

48 Moreover, if there were an enforceable agreement, the defendant repudiated the agreement by no later than 1995. Any cause of action for breach of contract was barred by s 14 of the Limitation Act.

49 The plaintiff submitted that the parties were partners and that the defendant was in breach of fiduciary duties he owed to the plaintiff by refusing to proceed with the construction of a dwelling on the rear lot. The plaintiff contended that the Limitation Act was not a bar to a claim for equitable compensation for breach of fiduciary duty. The defendant did not plead that equity should apply the statute by analogy.

50 I do not accept that the parties were partners. They did not carry on a business in common with a view of profit. Their co-ownership of the property, its subdivision, and the possible construction of a separate dwelling on the subdivided lot did not amount to the carrying on of a business (Partnership Act 1892 (NSW), s 1(1)). Co-ownership of property does not of itself give rise to fiduciary obligations (Pizzale v Gumina Enterprises Pty Ltd (1994) 13 WAR 88 at 109). Whilst a joint undertaking carried out through the medium of joint ownership might give rise to fiduciary obligations, whether that is so or not will depend upon the form which the particular joint venture takes and the content of the obligations which the parties to it have undertaken (United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1 at 10-11).

51 In the present case, both parties were entitled to have regard to their own interests in deciding whether or not and to what extent to proceed with development of the land. The defendant did not breach any obligation he owed to the plaintiff, whether fiduciary or contractual, by declining to take the risk of loss in undertaking further joint borrowings which would have been required if the construction of the separate dwelling were to have proceeded.

52 I should add that even if the defendant were in breach of any such obligation, the plaintiff has not established any loss. The extract from the quote from the prospective builder of 13 April 1994 did not establish what would have been the cost to construct a house on the premises. There was no evidence of what work the plaintiff contended he, or he and the defendant, could themselves have carried out, or what would have been the cost of the remaining work. As a loan approval had only been obtained for construction finance of $125,000 it was not established that the parties could have completed the construction of a dwelling.

53 For these reasons the claim for damages or equitable compensation fails.

Third Claim

54 The third claim is for damages of half of $7,300 arising from the defendant’s alleged refusal to accept an offer for the front block of the property of $275,000. That property was sold some months later for $267,500. There is no evidence that the defendant refused to accept the offer. For all that appears the offeror simply did not proceed. Even if the defendant did refuse the offer, there is no basis for saying that this was a breach of any duty he owed to the plaintiff. The fact that the property was subsequently sold at a lower price does not mean that the defendant was obliged to agree to the earlier offer of a higher price. In any event, the claim is statute-barred.

Fourth Claim

55 The fourth claim was for expenses of $1,968 for works carried out to enable the sale of the house on the front block to take place. The plaintiff claimed this amount for removing the air-conditioner and replacing a window, repairing the hot water system and replacing a faulty pier. This work did not increase the value of the property the parties retained. Any claim the plaintiff has against the defendant in respect of these works could only lie on a common money count for moneys paid at the defendant’s request and for their joint benefit, or as a quantum meruit for work done at the defendant’s request. Those claims are statute-barred.

Fifth and Sixth Claims

56 The plaintiff makes two claims in respect of time spent and work done in connection with the grant of easements to adjoining owners for which the parties were paid $25,000 and $18,710. The first easement was registered on 14 December 1995. Connected with the grant of this easement was work done to install pipes over the land in 1996. The same excavation was required to be done to satisfy conditions of the subdivision. The payment of $25,000 for the grant of the first easement was divided between the parties equally. The plaintiff received more than 50 percent of the payment for the second easement. Neither easement has been shown to add to the value of the land retained by the parties. To the contrary, the burdening of the land by the easements would have detracted from the value of the land and it was for this that compensation was received. As the plaintiff admits that he received $12,500 for the grant of the second easement whereas the defendant received only $6,210, he has been more than compensated for work done in respect of the grant of the easements. In any event, any claim in respect of work done in connection with these easements was statute-barred at the time these proceedings were commenced.

Conclusion

57 It follows that on the sale of the rear lot by trustees for sale the plaintiff is entitled to contribution from the defendant of $13,737 plus any interest which might be awarded. The plaintiff’s other claims should be dismissed.

58 The amounts which the parties must have spent in these proceedings is out of all proportion to the amount at stake. The plaintiff’s conduct of his case leaves much to be desired and must have increased the costs. I will hear the parties on costs.

59 The plaintiff’s evidence does not permit the making of orders for the appointment of trustees for sale. If trustees for sale are to be appointed there must be joint trustees and not a single trustee (Conveyancing Act, ss 66B and 66G). The parties expressed the hope that the cost of trustees could be avoided. The defendant indicated that no point would be taken that the plaintiff was not entitled to contribution if orders were not made for the appointment of trustees for sale but the parties agreed on a regime for sale. After judgment was reserved I was advised that the parties had agreed to orders for the listing and sale of the property. Those orders will provide for the payment of contribution.

60 I will stand the proceedings over to a date to be fixed:

(a) to hear argument on whether the plaintiff is entitled to interest on the amount of $13,737 for which he is entitled to contribution from the defendant;

(b) to hear argument on costs; and

(c) to make appropriate orders and declarations.

61 I will also stand over to a separate date the hearing of any submissions on behalf of the plaintiff’s solicitor as to whether I should refer the issues referred to in paras [22]-[26] arising from the plaintiff’s first affidavit to the Council of the Law Society or the Legal Services Commissioner for investigation. That date will be after the time limited for an appeal or application for leave to appeal from the orders I will make, or, if an appeal or application for leave to appeal is filed, after the determination of such appeal or application.

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