Marshall v Fitzgerald - [2001] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARSHALL -v- FITZGERALD [2001] WADC 200

CORAM: DEANE DCJ

HEARD: 30, 31 JULY 2001

DELIVERED : 23 AUGUST 2001

FILE NO/S: CIV 195 of 2001

BETWEEN: DEBORAH ANN MARSHALL
Plaintiff
AND
KENNETH JAMES FITZGERALD
Defendant

Catchwords:

Contract law - Whether document constituted a valid contractual offer by defendant to plaintiff - Circumstances surrounding signing of document - Whether parties intended to be bound by document - Did offer come to an end before acceptance - Was offer withdrawn by defendant or rejected by plaintiff - Was offer varied prior to signing of document by plaintiff - If so did such variation constitute a counter offer - Credibility of parties - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff
Category B

Representation:

Counsel:

Plaintiff: Mr G M Townsend
Defendant: Mr J A Davies

Solicitors:

Plaintiff: Stables Scott
Defendant: Davies & Co

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

Harris v Jenkins [1922] SASR 59
Hyde v Wrench (1840) 49 ER 132

Case(s) also cited:

Blacktown Municipal Council v Doneo [1971] 1 NSWLR 157
Cole v Cunningham (1837) 173 ER 406
Khaled v Athanas Bros (Aden) Ltd (1967) 1 BPR 9310 (Privy Council)
Stevenson Jaques & Co v McLean (1880) 5 QBD 346

DEANE DCJ: A number of issues arise for consideration and determination in this matter. Why that is so will become apparent when the evidence of the plaintiff and the defendant, which is in conflict in some very material respects, is considered. For this reason the issue of credibility is of considerable significance in the case.
The plaintiff alleges that by a written agreement made on 25 May 1998 between herself and the defendant, the plaintiff agreed to sell to the defendant and the defendant agreed to purchase from the plaintiff, all of the plaintiff's interest in and to a property known as "Neening Park Farm" as well as her interest in a Volvo Loader for the sum of $130,000. This sum was to be paid by the defendant to the plaintiff on or before 19 July 1998. It is common ground that the plaintiff has not received that sum or any part of it from the defendant to date, as a result of which the plaintiff claims a breach of the terms of the agreement. The plaintiff asserts that she has been and remains ready, willing and able to do everything necessary to effect the sale and purchase of the property the subject of the agreement.
The defendant admits signing a document which the plaintiff purports to be an agreement in writing made on 25 May 1998 that by its terms comprised an offer to the plaintiff and says further that on 25 May 1998 the plaintiff took possession of that document. At that time, according to the defendant, the plaintiff verbally rejected the offer made in the document and stated her intention to create a further document by way of a counter offer. It is alleged by the defendant that the plaintiff also stated at this time that she was going to destroy the existing document before making the counter offer to the defendant. Following this the defendant claims the plaintiff confirmed that she had in fact destroyed the document. As a result it is said that the document in question did not create a contract between the plaintiff and defendant and therefore it is denied that the defendant is in breach of the terms of the alleged agreement by failing and continuing to refuse to pay the plaintiff the sum of $130,000.
It will be necessary to decide, among other matters;
1.Whether the document dated 25 May 1998 constituted a valid contractual offer by the defendant to the plaintiff and whether the parties intended to be bound by it;
2.Whether the offer came to an end before it was accepted and, if so;
(a)was the offer rejected by the plaintiff on 25 May 1998;
(b)was the offer withdrawn on 25 May 1998;
3.Whether the document purporting to be the offer was varied before being signed by the plaintiff;
4.If so, whether the variation constituted a counter offer;
5.Whether the defendant is truly and justly indebted to the plaintiff in the sum of $130,000.

The plaintiff's evidence

Ms Marshall (formerly known as Mrs Firth) met the defendant, who was separated from his wife, in late 1990. Subsequently a relationship developed between them and in early 1991 the plaintiff and two of her three children moved to live with the defendant and his daughter, Carmel Fitzgerald, in the defendant's home in Merredin. At the time the plaintiff who was receiving a single parent's benefit took with her furniture and personal effects to the value of approximately $40,000. Initially the defendant was also receiving social security benefits.
When the defendant was declared bankrupt after encountering financial difficulties, the Merredin premises were repossessed by the bank and so both the plaintiff and defendant with their respective children rented a property at Nukarni for approximately two years. On 11 May 1993 the plaintiff and defendant had a child, Georgia Fitzgerald. During this period the defendant was working in the mining industry, pegging mining leases and also carrying out grid work for sampling purposes for various mining companies. To some extent the plaintiff assisted him in this regard in that she travelled to various locations with the defendant whose income was paid into a joint account.
Mr Dale, a business acquaintance of the defendant, subsequently purchased a property at Booran which is approximately 10km from the township of Merredin. Following this both the plaintiff and defendant leased part of this property, "Neening Park" farm, for $1,000 per month. They had an option to purchase the property for the sum of $160,000. Both the plaintiff and defendant set up a piggery on the property, (the plaintiff holds a diploma from Muresk College in piggery management) and grew grain crops on the land. The plaintiff ran the property at times whilst the defendant was away working in relation to his mining interests and for the Main Roads Department. The income from the property was paid into a joint account. In December 1997 the plaintiff and defendant jointly purchased the property with funds borrowed from Elders Finance, but for a variety of reasons the transfer of the property was not effected until January 1998.
The parties ran the farm enterprise in partnership with one another and the farming equipment and machinery were also in their joint names. At about this time the defendant, who held a gypsum mining lease which was about to commence operation, decided to purchase a front end loader to assist in that particular project. To that end in December 1997 such a machine was purchased for $250,000 and this coincided, according to the plaintiff's evidence, with the defendant ceasing to give her very much information about his involvement in his mining interests, the proceeds from which were placed into a separate account. It was also about this time that the personal relationship between the plaintiff and defendant began to deteriorate.
The deterioration in the relationship continued during the early months of 1998 and on 15 May an incident occurred at "Neening Park" farmhouse which further soured relations between the parties. On that occasion the defendant's son Tristan, who had been temporarily living at the property, assaulted the plaintiff after the plaintiff and Carmel Fitzgerald became involved in a physical altercation with one another. As a result both the plaintiff and Ms Fitzgerald both required medical attention and Tristan Fitzgerald was subsequently charged with related criminal offences. He was tried and acquitted of these offences at a later time in the District Court. Following the events of 15 May the defendant requested the plaintiff to leave "Neening Park" but she refused as it was her home and she did not intend to leave it under the circumstances existing at the time.
On Saturday 23 May 1998 the child Georgia fell ill with tonsillitis and her condition deteriorated the following day. According to the plaintiff, the defendant ignored her requests to allow her to use his Landcruiser to take the child into town for medical treatment. The plaintiff's own vehicle, a Cortina, was not functioning as, according to her evidence, the defendant had removed the distributor cap from the vehicle.
Ms Marshall gave evidence that by Monday 25 May 1998 Georgia's condition had worsened to the point where she was very concerned about the child's welfare and was becoming desperate to obtain some form of medical assistance. The plaintiff said that on that morning the defendant, who was at home in the early part of the morning, produced a document which the plaintiff recognised as being in Carmel Fitzgerald's handwriting, and informed the plaintiff that if she signed that particular document he would permit her to take Georgia to hospital to obtain medical treatment. The defendant also told the plaintiff that she was not going to be able to take Georgia to the hospital until she signed the document. The plaintiff's recollection was that the document (which is reproduced at p 29 of the trial bundle of documents) contained writing on one side only when she initially saw it in the defendant's possession. The plaintiff said she refused to sign the document at the time because she did not want to leave the property immediately. Nonetheless, according to Ms Marshall the defendant signed the document in front of her that morning indicating to the plaintiff that this was to demonstrate his bona fides.
The plaintiff said that on 25 May sometime between 5.00 pm and 6.00 pm she was outside the farmhouse when once again the defendant asked her to sign the document. The plaintiff was still very concerned about her daughter Georgia's condition and desirous of obtaining assistance for her daughter. When asked on this occasion to sign the document the plaintiff agreed and did so in the presence of the defendant, his daughter Carmel Fitzgerald and Mr Lance Henderson, an acquaintance of the defendant, who happened to be at the property at that time. The plaintiff's recollection was she signed the document whilst it was resting on the bonnet of a Landcruiser. She pointed out that the date on the bottom of the document, being 24 May 1998, was incorrect and in response the defendant altered it to 25 May 1998 and both of the parties then initialled that change. Ms Marshall was insistent that the initials next to the alteration purporting to be those of the defendant are indeed Mr Fitzgerald's initials in his hand. The plaintiff conceded that at this time the reverse side of the document was blank, but her evidence was that she wrote certain things on the reverse of the document as instructed by both the defendant and Mr Henderson. Apparently Mr Henderson was of the view that to have legal status the document had to have a settlement date nominated in it. This particular document which comprises pages 28 and 29 of the trial bundle of documents subsequently became Exhibit P2 at trial.
It is useful to describe in some detail the contents of this particular document. The first page of the document (p 29) in Carmel Fitzgerald's handwriting, values the farmland at $225,000 being $500 per acre for 450 acres. There then follows a valuation of $20,000 for livestock, which I understand is a reference to the pigs on the property. Thereafter is a list of valuations attributed to farm machinery totalling $60,000. The liabilities being outstanding monies owing to Elders and on farm machinery are then set out and when deducted from the sum of $300,000 leaves a total of $120,000 (a half share in this equalling $60,000). When the plaintiff's share in the front end loader is added, a total of $118,000 is reached and then for some reason this amount was increased. The end result being that the document states that the selling and purchase price is agreed at $130,000.
The rear of that document (p 28), containing the words which the plaintiff says were dictated to her, reads in the following manner;
"I, Deborah Ann Firth, hereby agree to sell to Kenneth James Fitzgerald all my interests in Neening Park farm and my interest in the Volvo loader. These are encumbered by a mortgage with Elders and stock account and crop lien with Elders which he is aware of.
I agree to sign over to him and sign all paperwork putting these in his name and all mortgage (sic) in his name from this date 25th of May I will have no further interest in any property loans or mortgages and agree to accept the sum of $130,000 which will be paid over on or before 19-7-1998."
That document then bears the signature of the plaintiff and the date 25/5/98. The plaintiff's recollection was that the settlement date on the reverse side of the document is noted as 19/7/1998 because that was the date by which the defendant anticipated he would be receiving monies from his gypsum mining lease.
Mrs Marshall's evidence was that once the document had been completed in this way the defendant claimed it was not neat enough and he wanted the plaintiff to reproduce the document using a computer. For this purpose they went into the house, at which point the police arrived with a number of representatives from Family and Children's Services (FCS). The plaintiff was in the computer room or office of the farmhouse with representatives of the FCS for a short period but said they gave her no advice as to what she should do in relation to the document which she still retained in her possession. She denied writing on the reverse side of the document whilst in the computer room or office. Soon after the plaintiff with her daughter, was taken into town where the child was hospitalised for several days. Ms Marshall had no recollection of reading the document and telling the defendant it was no good and that as a consequence she would draw up a new offer on the computer.
Following the child being discharged from hospital the plaintiff returned to "Neening Park" farm where she encountered the defendant who was in the company of a female friend. The plaintiff was told her vehicle was now fixed and ordered to leave the property, which she did. Although the plaintiff made several subsequent visits to "Neening Park" farm in order to collect personal belongings, her evidence was that after 25 May 1998 she derived no financial benefit from the property, nor did she resume possession of it in any form. Since that time the defendant, on her understanding, has had exclusive possession of the property. Approximately three weeks after 19 July 1998, when the plaintiff had still not received any payment from the defendant pursuant to what she believed was the agreement between them, she sought legal advice as to her position. She was advised to present the document, Exhibit P2, which she had in her possession to the State Revenue Office for stamping as it was a contract of sale and the plaintiff intended to enforce that agreement. The document was submitted to the State Taxation Office on 8 September 1998.
The plaintiff was firm in cross‑examination that she had decided prior to September 1998 to enforce the agreement and said she had relied on its contents from 25 May 1998, considering it at the time a valid and legally enforceable document which she believed would be honoured. She sought legal advice in relation to the matter because she was unsure how to go about enforcing the agreement. At all times she had intended and believed the document to be binding and for that reason denied advising her solicitors that she regarded the document as void. As a lay person, with no legal training, the plaintiff's position was that her legal advisers merely set out her position relevant to the options available to the plaintiff. The plaintiff did not take the position prior to September 1998, according to her evidence, that she had been forced to sign the document, Exhibit P2, against her will.
On 11 August 1998 the plaintiff's family law solicitors wrote to the defendant's family law solicitors (Exhibit P3) referring to the agreement of 25 May 1998 and enquiring if the defendant adhered to that agreement and if so, when payment could be expected. No reply to this letter appears to have been made.
In Exhibit D1, a further letter written by the plaintiff's Family Law solicitors to the defendant's Family Law solicitors on 18 August 1998, reference is made, among other things, to the document dated 25 May 1998 and signed by the parties. The plaintiff's solicitors indicated they were instructed that the agreement was executed by the plaintiff under duress and that the defendant was in a position to exert undue influence over the plaintiff. There then follows, in my view, the paragraph setting out what are understood to be the plaintiff's options at law, namely that the document could be considered void on the grounds that the plaintiff did not have true contractual consent at the time of executing it or that the document was voidable in that the plaintiff has an election to adhere to the agreement or to treat it as void depending on her decision. The letter then goes on to point out that before such a decision was made by the plaintiff she wished to consider the defendant's proposal as to whether or not he wished to adhere to the agreement or otherwise. That correspondence also makes the point that as at 18 August 1998 the farm was still owned by both the plaintiff and the defendant. I understand this assertion to be made because payment of the $130,000, either in full or in part, had not been made to the plaintiff by the date of the correspondence.
In restraining order proceedings heard in the Court of Petty Sessions at Merredin on 5 May 1999, part of the transcript of which became Exhibit D3, the plaintiff cross‑examined the defendant about a number of matters. She asked him if the farm was still in joint ownership and the defendant replied he did not believe it was any more because the State Revenue "has been gone in and there's no any more partnership". The defendant further stated "the partnership is dissolved by the Taxation Department already". It is the case that the plaintiff did not cross‑examine the defendant on the basis that he forced her to sign the document, Exhibit P2, but she explained that she did not consider this to be a relevant issue at the time as she was seeking a violence restraining order.
Although the plaintiff admitted seeing the defendant on a number of occasions after 25 May 1998 she said at no time when he questioned her as to the whereabouts of Exhibit P2, did she inform him that she had destroyed it. Rather she said she told the defendant she no longer had the document and left it at that. The plaintiff did not condescend to detail by informing the defendant that the document was in the hands of an acquaintance of hers, a Mr Rutter, and she also conceded that given her reply to the defendant it was possible he assumed that the document had been destroyed, although she never on her evidence advised him this was the case. The plaintiff further denied ever informing the defendant that she had destroyed the document and that she would prepare a new document when her computer equipment was fixed.
At trial the plaintiff agreed in cross‑examination that after signing Exhibit P2 on 25 May 1998 in the manner and circumstances she explained to the Court, she did not make any arrangements regarding settlement on the sale of the property because she believed that it was the defendant's responsibility as the vendor to arrange for settlement and further on a practical basis at that time the plaintiff did not have sufficient funds to engage a lawyer to organise settlement on her behalf.

The defendant's evidence

Mr Fitzgerald confirmed that after the events of 15 May 1998 he informed the plaintiff that their relationship had effectively come to an end. When she informed the defendant that she would vacate "Neening Park" farm and sign items over to the defendant in return for a sum of money, the defendant indicated he would work these matters out from a financial perspective.

It was to this end that on Sunday 24 May 1998 the defendant, in company with his daughter Carmel and the plaintiff's son, went into Merredin to consult with Mr Jack Reid, a very close and long term friend of the defendant and his family. Apparently Mr Reid, although not a qualified accountant, had considerable accounting experience as well as having farming and land owning interests in the Merredin district. In addition, he had carried out valuation work for the defendant's family farming business for approximately 35 years. Mr Reid continued to do a considerable amount of the defendant's bookwork relevant to his business interests.
At one point in his evidence the defendant said that Mr Reid, on the occasion in question, had the benefit of financial materials prepared by Mr Graham Smith, the defendant's accountant. The defendant consulted Mr Reid about the valuation of "Neening Park" farm and associated equipment because he was a friend whom the defendant trusted and he was providing this assistance without charging for his time.
The defendant spent some five or six hours at Mr Reid's home on 24 May 1998, discussing the defendant's position relevant to the farm and associated items and what was to be done about them. As a result of this discussion various values were ascribed to the land comprising the farm and items such as livestock and machinery. In reaching a final figure or valuation as to the plaintiff's half share in the property liabilities were also taken into account. These matters have previously been referred to and can be readily seen on the front page of Exhibit P2.
Somewhat curiously, in cross-examination, the defendant having said that the farm comprised 475 acres (it is to be noted that Exhibit P2 refers to it as consisting of only 450 acres) then said he had no real idea what the land was worth per acre in May 1998. He conceded, however, that he had purchased the land some five months earlier in late 1997 for $165,000. Relevant to the values given to certain items in Exhibit P2, the defendant in cross‑examination claimed that he over‑valued the livestock (being the pigs) as he had no figures with him at Mr Reid's home and he considered that the price for pigs at the time had begun to decline. He also said that the $30,000 attributed to the value of the tractor was another example of over‑valuation on his part. In the end the defendant said he had no idea what his farm, plant and equipment were worth as he was primarily concerned with working on the farm and matters of finances and bookwork were the sole province of the plaintiff. It seems that the experience in such matters which the plaintiff claimed Mr Reid possessed, did not deter the defendant from over‑valuing the farmland and related assets.
The defendant then left Mr Reid's home taking the document, which at that time contained writing only on its front page, and returned to "Neening Park" farm. The following morning Mr Fitzgerald said he went to work for the Main Roads Department at Walgoolon and he had no discussion with the plaintiff prior to leaving. He returned to "Neening Park" farm early in the afternoon and conceded by that time the child Georgia was very sick. As a result the defendant claimed he wished to take the child into town for medical treatment but the plaintiff became very angry and refused to allow him to do so. After arguing with the plaintiff the defendant said he then went outside to feed the pigs just as his acquaintance, Mr Lance Henderson, arrived at the farm in a company truck. Mr Henderson, although not a farm employee as such and although not accustomed to feeding the pigs then assisted the defendant to feed the animals. It seems, however, that Mr Henderson's main purpose in coming to the farm that afternoon was to obtain assistance to fix a truck that he and the defendant were using in their work for the Main Roads Department.
After feeding the pigs the defendant returned to the house and found the plaintiff on the telephone to the police complaining to them that the defendant had threatened to kill her. As this was untrue the defendant took the telephone and told Constable Ring this. According to Mr Fitzgerald the police said and did little of use at that time. The defendant then went outside again and had a discussion with Mr Henderson and Carmel Fitzgerald. After this the group returned to the house where once again the plaintiff, who was in an angry condition, was on the telephone speaking to the police. At this point the defendant, Mr Henderson and Carmel Fitzgerald went outside. It seems that about this time Carmel Fitzgerald used Mr Henderson's car phone to contact the police as she was concerned regarding both Georgia's health and the plaintiff's behaviour. Then, according to the defendant, the plaintiff came outside at which point the defendant took the document, Exhibit P2, which had been prepared at Mr Reid's house the day before, from a briefcase in his Hilux utility and signed it in front of the plaintiff. He then gave it to the plaintiff to sign but she refused to do so, saying that the document was no good and that she would do one up on the computer. Mr Fitzgerald's evidence was that neither he nor Mr Henderson dictated any words to the plaintiff to put on the rear of the document and when the plaintiff went inside with the document, which contained no writing on the rear at that stage, the police and members of FCS arrived.
It appears that the defendant must have also gone inside because he saw the plaintiff go into the computer room and a short time later the plaintiff and the child Georgia were taken into town by the authorities.
Approximately two days later on 27 May 1998 the defendant gave evidence that the plaintiff returned to "Neening Park" farmhouse and informed him that she had destroyed the document, Exhibit P2. The following month on 18 June 1998 when the defendant was visiting Georgia in Merredin, he again saw the plaintiff and once more she informed the defendant that she had destroyed Exhibit P2 and intended to draw up a new document on her computer when it was fixed. The defendant's evidence therefore was that the last occasion on which he saw that document was on 25 May 1998 at his farm and not only was it in the possession of the plaintiff but it contained writing on one side only.
In January of 1999, a female acquaintance of the defendant travelled to Perth as a result of receiving certain information and went to the State Revenue Department where she saw Exhibit P2. Following this on 7 April 1999 the defendant wrote to the State Revenue Department, Exhibit P5, referring to their stamp duty assessment of $1,531.25. The defendant informed them that the assessment related to an agreement entered into between himself and his former de facto, the plaintiff. He said shortly after entering into the agreement both he and the plaintiff agreed they would not proceed with it and therefore it had not been acted upon in any way and could not be acted upon. This letter referred to the acrimonious relationship which then existed between the defendant and the plaintiff, as a result of which the defendant requested the State Revenue Department to cancel the agreement and the associated stamp duty assessment. In the event that his suspicions that the plaintiff would not cooperate in such a procedure, the defendant requested advice from the department as to how he could proceed with cancellation. When questioned about this particular document the defendant explained, without going into any great detail, that he was mistaken when he wrote Exhibit P5.
Mr Fitzgerald said that after May 1998 the next occasion on which he saw any material connected with Exhibit P2 was on about 11 August 1999 when his lawyers provided him with a copy of the writing on the rear of the document (p 28 trial bundle of documents). It was then, according to the defendant's evidence, that he realised the document differed from when he had seen it on 25 May 1998 because in May it contained no writing on the reverse side and furthermore the initials next to the altered date on the foot of the front page of the document were not his initials, nor had the date of 24 May, to his knowledge, been altered or initialled by the plaintiff. Finally, he did not believe that the document had been signed or dated by the plaintiff on 25 May 1998.
Although in 1999 the defendant received some transfer of land documents from solicitors engaged by the plaintiff, it seems he did nothing in relation to those materials because he did not believe that any agreement existed with respect to the sale of the plaintiff's half interest in the "Neening Park" property to the defendant, as he was of the view that the plaintiff had not signed the agreement on 25 May.
When questioned as to why, if he believed that no contract or agreement for the sale and purchase of the property in question was concluded between himself and the plaintiff on 25 May 1998, the defendant in the Merredin Court of Petty Sessions on 5 May 1999 said there was no partnership existing at that time regarding the farm, the defendant simply said that was his understanding or what he thought. He then said he did not know if the partnership had been dissolved or not and added that he had been given advice by his solicitor to the effect that the document (one assumes this is a reference to Exhibit P2) had not been signed.

Evidence of Carmel Fitzgerald

Ms Fitzgerald, the defendant's daughter, is now 19 years of age and was living in the "Neening Park" farmhouse at the time of the events in issue. She confirmed the violent events of 15 May 1998 and also that she attended with her father at Jack Reid's home on 24 May 1998 where she wrote out the valuations on Exhibit P2.
On 25 May 1998 Ms Fitzgerald arrived home from school in the afternoon and proceeded to go to the piggery in order to clean it. There she encountered the defendant and Mr Henderson. The defendant then returned to the house and came back a short time later advising that yet another family dispute had occurred and the plaintiff had telephoned the police. The group then returned to the farmhouse where the plaintiff was noted to be on the telephone to police. Ms Fitzgerald's recollection was the plaintiff was informing police that she was worried about the safety of herself and her daughter Georgia. The defendant had earlier informed Ms Fitzgerald that he wished to take Georgia to hospital but obviously this had not occurred. In view of Georgia's condition and the atmosphere existing between the parties, Ms Fitzgerald telephoned the police for assistance using Mr Henderson's car phone.
Her recollection was that she observed the defendant get a document from his briefcase which was in a Hilux utility. She then saw the defendant sign the document and give it to the plaintiff, who refused to sign it saying that she would create a new document on the computer. According to Ms Fitzgerald, the plaintiff then went inside the house followed by herself and the defendant. Approximately 10 minutes later police and representatives of FCS arrived and it was at that stage Ms Fitzgerald said she observed the plaintiff come out of the computer room or office with the document, Exhibit P2. Ms Fitzgerald's evidence was that at this time she noted writing on the reverse side of the document in the plaintiff's hand. She said she saw this from a distance. Her evidence was that on 27 May the plaintiff came to the farmhouse to collect some belongings and there was an argument between the plaintiff and the defendant about that. On Friday 29 May the plaintiff again returned to the farmhouse to collect more belongings and on this occasion the defendant asked the plaintiff if she had the document any more and the plaintiff replied that she did not have it any more. Ms Fitzgerald made no reference to hearing the plaintiff tell the defendant that she had destroyed the document.
In her evidence Ms Fitzgerald agreed with the defendant that as at 25 May 1998 the Landcruiser motor vehicle was not present at the farm as it was in town with her brother Tristan. According to her, on that date the plaintiff's Cortina motor vehicle was functioning. The defendant gave evidence that in effect he inferred that the plaintiff's vehicle was functioning that day because Ms Fitzgerald had informed him that the plaintiff had been seen in the vehicle in the town of Merredin on that very day. Ms Fitzgerald's evidence, however, was that on 25 May she had no idea whether the plaintiff travelled to town or not.

Findings on the evidence

I consider the evidence of the defendant to be unsatisfactory in a number of respects. Whilst it is not a critical issue in these proceedings, clearly at the time in question and in the weeks leading up to 25 May 1998, the household at "Neening Park" farm could be fairly described as violent and yet the defendant denied that this was the case. He gave no plausible or, in my view, acceptable explanation for how on 25 May the plaintiff actually prevented the defendant, who had access to at least one motor vehicle, from taking a very ill child into Merredin for medical assistance other than saying the plaintiff told him he was not to do so and she was behaving in an angry fashion.
Furthermore, the defendant was unable to provide a satisfactory explanation as to why when he had an opportunity to tell Constable Ring as he was speaking to him on the telephone the defendant failed to request medical attention for the child Georgia. On the defendant's evidence he was very concerned about the child's condition and was being prevented from taking her into Merredin for medical treatment as a result of the plaintiff's behaviour. In the circumstances the defendant's explanation that the plaintiff was screaming and shouting and he did not know what to do is not particularly plausible. On his own evidence the defendant had the presence of mind to take the phone and deny to Constable Ring that he had threatened to kill the plaintiff.
It is extraordinary to suggest that if the plaintiff's Cortina was functioning on 25 May 1998 that the plaintiff would not use the vehicle to take her very ill young daughter into Merredin to obtain medical help. It is equally extraordinary to suggest, as the defendant appears to wish the Court to infer, that the plaintiff had either driven to Merredin that day with the child Georgia and failed to obtain medical assistance or the plaintiff had driven to town that day and left a very ill young child alone at the farm.
There were a number of other instances where I consider that the defendant was less than forthright in the giving of his evidence. It is simply not credible in the circumstances, that the defendant had no idea of the value of the acreage of the land at "Neening Park" farm in May 1998, when in fact only approximately five months before that date he had purchased land jointly with the plaintiff for a not insubstantial sum of money. Whilst it is a small point it also defies commonsense that having lived in the Merredin area all his life and in particular having lived at "Neening Park" farm for a number of years, the defendant claimed he did not know how far the property is from the Merredin townsite and was unsure if the road between the town and the farm is sealed. It would be somewhat amazing for the defendant not to have some knowledge of these matters or have some clear idea about them against the background I have just described.
It is common ground that by 25 May 1998 and for some time preceding that date, relations between the plaintiff and the defendant were very poor. The defendant was keen for the plaintiff to leave the farm but was aware that this would not occur unless the plaintiff received some financial incentive to do so. Given the acrimonious nature of the relationship between the parties at the time it makes no sense at all, as the defendant asserted in his evidence, that he attributed inflated values to the items contained on Exhibit P2. The defendant is a mature man with considerable experience in farming and he has also had some exposure to the business community through his mining interests. I do not accept that given this history the defendant would have gratuitously placed the plaintiff in a situation where she was clearly, on his evidence, going to be in a financially advantaged situation whereby she would obtain a financial benefit that was not properly due to her. I do not believe that if the items were over‑valued as the defendant claims they were, he would have made the offer to the plaintiff without checking the accuracy of his estimates.
On the evidence before me, I do not find that the plaintiff ever told the defendant she had destroyed the document, Exhibit P2, although it is possible as the plaintiff said in her evidence that when she informed the defendant she no longer had the document in her possession, which was in fact true at the time, the defendant may have assumed that this meant it had been destroyed. I do not consider that this concession on the part of the plaintiff is at all inconsistent with her assertion that the agreement was valid.
I fully accept the evidence of the plaintiff as to the circumstances in which the offer was made to her by the defendant on 25 May 1998 and the circumstances in which certain minor alterations were made to it when it was signed by both parties. I find on the plaintiff's evidence that the defendant did sign that document earlier in the day as a demonstration of his bona fides and that after initially refusing to sign it, later that day in the circumstances described by the plaintiff, she signed the document. I do not accept there was any suggestion by the plaintiff on that day that she would draw up a new document as the one handed to her was not good enough. I accept, however, that the defendant did indicate that he would prefer the document to be more formal in appearance by way of being reproduced on a computer.
The plaintiff on my assessment, presents as an intelligent person but clearly on her own admission she has no legal training. I do not accept that in the emotionally heightened circumstances that existed at "Neening Park" farm on the late afternoon of 25 May 1998 that a person in the plaintiff's position would have retired to the computer room, possibly in the presence of some FCS officers, and drafted the words seen on the rear of Exhibit P2 of her own motion. Further I accept the plaintiff's version of events concerning this aspect of the matter because I consider it entirely plausible that Mr Lance Henderson made the suggestion that a settlement date be included in the contents of the agreement. I find that the words on the rear of the document were written by the plaintiff in the situation described by her and at the dictation of either the defendant or the defendant and Mr Henderson in combination. In my view there is nothing sinister in the fact that the wording on the rear of the document was not signed by the defendant. I reject the submission made on behalf of the defendant that whilst it may be said on one interpretation that the wording on the reverse of Exhibit P2 may in some way favour the plaintiff by ensuring she is absolved from any responsibility for the continuing debt encumbering the land that by no means leads to an irresistible inference that those words were added at her desire. I accept the submission on behalf of the plaintiff in this regard that she would be entitled to call for an indemnity in respect of any recourse that an external creditor (secured or unsecured) may have in relation to debts which arose during the course of the partnership when it was in existence.
In assessing Carmel Fitzgerald's evidence I am mindful of the fact that she is the daughter of the defendant and appears to have a relatively close relationship with him. In addition it would be most surprising given the events of 15 May 1998 and their sequel that Ms Fitzgerald would be well disposed towards the plaintiff and therefore have a desire to assist the plaintiff in any manner. I have considerable difficulty in accepting Ms Fitzgerald's evidence that the first occasion upon which she saw writing on the rear of the document in the plaintiff's handwriting was after the plaintiff came out of the computer room or home office. On her own evidence Ms Fitzgerald was some distance away from the document in any event at this time.

As I consider that the plaintiff was both a credible and reliable witness I totally reject any suggestion that the plaintiff either herself or through a third party forged the defendant's initials next to an alteration of a date on the front of Exhibit P2 or that she herself or through a third person altered the date from 24 May to 25 May without the defendant's knowledge and acquiescence. As an aside I consider it relevant to make some reference to the suggestion that the plaintiff's credit is suspect because she allegedly makes a claim to an academic qualification that she does not possess. The plaintiff gave firm evidence in cross‑examination that she holds a Bachelor of Science degree from the University of Auckland, which she completed in 1976. In 1977 the plaintiff enrolled at that University in a Bachelor of Architecture she did not complete. A photocopy of a document on University of Auckland letterhead dated 19 August 1991, Exhibit D2, states that the plaintiff enrolled for one year in 1977 at the University and does not hold any University of Auckland degrees. I prefer the evidence of the plaintiff on this point. There was no evidence before me as to the circumstances surrounding the preparation of Exhibit D2 and it could well be that there has been a clerical oversight or misinformation relating to the making of the document.
I reject the evidence that the contents on the rear of the document, Exhibit P2, were added without the knowledge of consent of the defendant. In all of the circumstances I do not find the contents of the writing on the rear of the document amount to a counter offer being an implied rejection of the defendant's offer; Hyde v Wrench (1840) 49 ER 132 and Harris v Jenkins [1922] SASR 59. I find that the contents of the rear page of Exhibit P2 were totally consistent with the contents of the offer on the front page of that document. As this material was added to the document with the knowledge and consent of the defendant then clearly the parties were ad idem and the elements of a binding contract were present when the parties signed the document on 25 May 1998 in the circumstances described by the plaintiff. The entire contents of Exhibit P2 comprised an offer which was capable of acceptance and the offer and acceptance were complete at that time. The arrival of police and FCS representatives at a later point in time therefore has no bearing on this aspect of the matter.
I do not consider that after 19 July 1998 when the plaintiff had received no monies pursuant to the agreement with the defendant her complaints to authorities regarding the manner in which the defendant was dealing with the property indicate that the plaintiff believed the agreement was not valid and binding upon the parties. Rather from a purely practical perspective in my opinion the plaintiff was simply attempting to ensure that the property was kept in the best possible condition so that she would eventually realise the $130,000 owing to her for her interest in that property. As against this I consider that the defendant's conduct relevant to the managing of the farming property after 25 May 1998 is totally consistent with a belief that he was then the sole owner of the property as, pursuant to his agreement with the plaintiff, she no longer had an interest in the property or any rights with respect to its management.

Conclusions

I therefore find that the document, Exhibit P2, dated 25 May 1998 constituted a valid contractual offer by the defendant to the plaintiff and further that on that date when the document was completed and signed both parties intended to be bound by it. It follows as a matter of logic that the offer did not come to an end before it was accepted by the plaintiff nor was it rejected by her or withdrawn by the defendant on 25 May 1998. The offer was not varied prior to being signed by the plaintiff. As the plaintiff since 25 May 1998 has been and remains ready, willing and able to do all that is necessary to effect the sale and purchase of the property and the Volvo, I find that the defendant is justly indebted to the plaintiff in the sum of $130,000.