May v Walker - [2024] NSWSC 612

Supreme Court

New South Wales

Medium Neutral Citation: May v Walker [2024] NSWSC 612
Hearing dates: 6 – 9 May 2024, further evidence 16 May 2024.
Date of orders: 27 May 2024
Decision date: 27 May 2024
Jurisdiction: Equity - Expedition List
Before: Rees J
Decision:
Proceedings dismissed with costs.

Catchwords:
CONTRACT – 82-year old bachelor owns land near Thredbo with ski lodge – befriended by couple – offers rent-free accommodation in return for work on property – couple press for 99-year lease, then 30 + 30 year lease, then 30-year lease – owner agrees couple can manage the ski lodge – couple apply pressure – bachelor seeks help – police evict couple – couple assert 30-year lease – whether a contract – principles at [159]-[160] – owner did not sign lease – couple falsify multiple documents in support of claim – rogues.
REPRESENTATION – whether owner represented that couple had 30-year lease – estoppel – misleading and deceptive conduct – principles at [177]-[178] – reasonable person in couple’s position would have recognised that owner unwilling to agree to (ridiculous) proposal, effectively giving his land to people he had just met on uncertain terms and for paltry return.
QUANTUM MERUIT – principles at [187]-[188] –plaintiffs did excavation and redecorated ski lodge – work poorly executed – property damage – benefit not established – no injustice where work in return for accommodation or management of ski lodge.

Legislation Cited:
Australian Consumer Law
Residential Tenancies Act 2010 (NSW) ss 18, 236

Cases Cited:
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251
GC NSW Pty Ltd v Galati [2020] NSWCA 326
Given v Pryor (1979) 24 ALR 442
Hegarty v Keogh (No 2) [2023] SASCA 30
Jeans v Cleary [2006] NSWSC 647
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426
May v Walker [2023] NSWSC 1628
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Parker v South Eastern Railway Co (1877) 2 CPD 416
Pavey&MatthewsPtyLtdv Paul (1987) 162 CLR 221
R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463
Re Application of Sutherland and Arnautovic [2014] NSWSC 821
Tasoulas v Tasoulas [2018] NSWSC 861
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603
Watson v Foxman (1995) 49 NSWLR 315

Category: Principal judgment
Parties: Abby May (First Plaintiff)
Dean Gibson (Second Plaintiff)
Neil Walker (Defendant)
Representation:
Counsel:
Mr J Pokoney (Defendant)

Plaintiffs (In person)
Solicitors:
Dentons (Defendant)

File Number(s): 2023/258230

JUDGMENT

HER HONOUR: By these proceedings, the plaintiffs, Abby May (aka Hoda Makki) and Dean Gibson, sought to enforce a 30-year lease of a ski lodge in Crackenback, in the Snowy Mountains region. The lease was said to have been executed by a then 82-year-old man, the defendant, Neil Walker.
By the end of the trial, the plaintiffs no longer wanted a lease but sought damages for breach of the lease, equitable compensation in respect of an estoppel, compensation under the Australian Consumer Law and quantum meruit for work done on the property. For the reasons which follow, the plaintiffs are not entitled to the relief sought. In truth, they are rogues.

Evidentiary matters

The plaintiffs were self-represented at trial. Their pleadings and evidence, however, had been filed at a time when they were legally represented. Both plaintiffs gave evidence and were cross-examined. In addition, they relied on the evidence of subcontractor Perry Condoleon and forensic document examiner John Ganas, neither of whom were required for cross-examination.
Whilst Ms May was an apparently demure woman, she proved to be an unsatisfactory witness who was evasive and became non-responsive on occasion. Ms May signalled answers to Mr Gibson when he was being cross-examined, but mostly desisted after reprimand. Ms May gave Mr Walker a slow clap on conclusion of his evidence, in a manner which I understood to be sarcastic. This was unhelpful.
Mr Gibson is an apparently smart, clearly spoken, self-assured person who appeared straight forward. However, Mr Gibson also got into difficulty in the witness box, including when it became apparent that he had created invoices shortly before these proceedings were commenced, to corroborate the existence of the lease: see [155]-[157].
The defendant gave evidence, together with Sharon Nunan (who arranged accommodation for Perisher Blue Pty Ltd staff in the local area) and Craig Banning (a longstanding guest at the property during the ski season for 30 years). All were cross-examined. Ms Nunan was the first person to contact the police on becoming concerned about the plaintiffs’ dealings with Mr Walker. She gave evidence in a very forthright manner and was clearly deeply concerned for Mr Walker’s welfare. Mr Banning was the second person to contact the police; he was a fair witness. I accept their evidence.
Mr Walker also encountered problems when giving evidence. I formed the impression that Mr Walker was an intelligent person with a keen eye to where his interests lay and gave evidence with an eye to those interests. His evidence was unlikely on occasion, for example, that he gave no instructions to Mr Gibson as to where he wanted a carpark to be constructed on the property. He also made some nasty remarks, although in the circumstances, he might be forgiven for doing so. Against this, Mr Walker did make some concessions.
As I have approached both the plaintiffs’ and the defendant’s evidence with caution, greater weight has been placed on the contemporaneous documents, of which there were many. As there was no telephone at the Crackenback property, the parties mostly communicated by email. A clear picture emerges.

“Winter Park”

Mr Walker is an elderly bachelor. As a young man, Mr Walker worked for the Snowy Mountain Hydro-Electric Scheme. In the 1970s, he bought 40 acres of land at Crackenback, a 10-minute drive from Thredbo. Over some years, he constructed buildings on site: a six-bedroom house, granny flat, sheds and dams. Mr Walker called it “Winter Park”. He rented the house out during the snow season, for up to a few weeks at a time.
Mr Winter had some longstanding guests. Mr Banning and John Gagen had stayed at Winter Park during the ski season for over 30 years with friends and family. One feature of these arrangements bears mention. Mr Walker went through a phase of asking guests to sign a Residential Tenancy Agreement. He kept a pile of Residential Tenancy Agreement forms in the house, which could be shown to any council officer who came to call. Mr Banning thought that Mr Walker was being paranoid but signed the forms until he was no longer asked to do so. This becomes relevant, where one of these forms was used to prepare the Residential Tenancy Agreement the subject of these proceedings.
In 2021, Mr Walker (then aged 80) investigated the possibility of developing Winter Park as a ski lodge with investors from Melbourne. The developer proposed to take a 20 + 20 year lease, with an option to purchase the property. Mr Walker declined the offer. This offer gained prominence as Mr Gibson used it as a guideline or template when preparing proposed leases for the property.
At the time of these events, Mr Walker slept in the granny flat and used the facilities in the main house, where the kitchen and bathroom facilities in the granny flat were limited. Mr Walker continued to aspire to develop and improve Winter Park, but his ability to achieve this was limited by a lack of funds and the physical limitations of age.

Paths cross

Mr Gibson (aged 50) trained as a carpenter but was subcontracting to a building company in Jindabyne called “Malibuild”. Also subcontracting to Malibuild was Mr Condoleon, who Mr Gibson had known for over 10 years and regarded as a mate. Mr Gibson was living with Ms May (aged 44) in short-term accommodation in Cooma. The accommodation was coming to an end at the end of February 2023.
On 20 January 2023, Mr Walker was catching a bus from Cooma to Jindabyne after a medical appointment. Ms May was catching the bus as well. Mr Walker said Ms May appeared to be distressed and lost; he spoke to her as he was concerned for her wellbeing. (Ms May did not remember if she was upset.) They talked through the next one-hour bus trip. Ms May said she was struggling to find accommodation. Mr Walker said he felt sorry for Ms May and offered her accommodation at Winter Park. According to Ms May, Mr Walker said she could come and live at Winter Park and bring it back to life as a bed and breakfast. (This is possible, but if said, was likely to have been said in a light-hearted manner and readily perceivable as such). As will be seen, Mr Walker had an eye for the ladies and Ms May was prepared to exploit that susceptibility.
Ms May called ahead to let Mr Gibson know she had met someone who had offered some temporary accommodation and that they needed to take a look. Mr Gibson met the bus at Jindabyne. The couple followed Mr Walker out to Winter Park. When they got to the property, Ms May said it was in a rundown condition (Mr Walker disagreed). Initially, Mr Walker offered Ms May a bed in the granny flat, but she said it would not be suitable. He then offered her a room in the main house.
According to Mr Gibson, they talked about their respective lives. Mr Walker said his health was stopping him from looking after Winter Park the way he wanted to; he needed someone to help. According to both Mr Walker and Ms May, Mr Gibson said he was a licensed carpenter and could do work on the property. Mr Gibson was not, in fact, licenced. (The licence details annexed to Ms May’s affidavit belonged to another person with the same name, but 20 years younger.) Mr Walker showed them through the house, which appeared to Mr Gibson to be perfect for Airbnb, with a bathroom for almost every bedroom.
The tour continued outside the main house. Mr Gibson saw that the gutters needed maintenance, and Mr Walker said he was too old to make repairs around Winter Park. They walked up to a concrete water tank and Mr Walker said he wanted to construct a road to loop around the tank and in front of the house; he had been trying to do this over the last 20 years. Mr Gibson offered to speak to Mr Condoleon about getting an excavator to do the works. According to Mr Gibson, at the end of the visit Mr Walker told Mr Gibson that he had wanted to run Winter Park as a guesthouse, but it was too much work for him at his age. Mr Walker proposed that maybe the couple could run Winter Park as a guesthouse; he invited them to move in for a while and see how it went.
The witnesses differed in their version of what was said at their first meeting. Having only just met, any discussion about the couple’s role at Winter Park was likely general and exploratory. Mr Walker and Mr Gibson both said that Mr Walker offered accommodation for a couple of weeks to see if they got along. It does appear that the couple saw an opportunity to not only stay at Winter Park on a temporary basis, but also to have a greater role at the property, assisting Mr Walker to run the ski lodge. It also appears from the emails which followed that Mr Walker was excited at the prospect of the couple providing both companionship and their efforts to maintain and improve Winter Park. The plaintiffs also both agreed that they could see that Mr Walker was lonely, isolated, living by himself and an older man. Later that evening, Ms May established email contact with Mr Walker, “It’s your new friend Abby”.
The next day, 21 January 2023, 15 emails were exchanged between Ms Abby and Mr Walker in little over an hour, expressing enthusiasm at their meeting. Mr Walker began, “How fantastic, thank you so much for amazing events, can’t wait.” Ms May was also effusive, “You are an amazing man! Dean has so much respect for you …”. Further, “as you see us and get to know us … you will know if we are real or fake … We are so excited I started to pack up last nite … can’t wait to start a whole beginning for all of us!!”. Ms May asked if it would be okay to drop in that afternoon and “bring a few bags”. Further:

“You are going to live your dream that you’ve always wanted.. actually all of us and I give you my word Dean and myself will have your back 100% and NO MORE BULLING! I will not let anyone talk down and disrespect you in any way I promise, once we are there and talk more and get too know each other we will see how things will happen but please please I beg you Sir don’t stress and overthink anything only what you what to happen will happen.. so think of it you got a couple of mates coming to stay with you for a couple of weeks and see how we go.. we will take baby steps until we are comfortable and understand one another.”

Mr Walker replied that he should have taken Ms May to see some other places in Crackenback, “a place of how it should be done, or how Winter Park must develop.” Mr Walker was also pleased to have met both of them, “DEAN is welcome, to say the least his building friends could store their materials here, if required.” Ms May replied, in an email entitled “Best friend”, offering to bring him some food and passing on Mr Gibson’s effusive compliments:

“All about you Sir.. and believe me [Mr Gibson] genuinely wants to help out and make life a little easier for you because you have opened your doors to us which means the world I will pay you some rent we can talk and discuss al that later.. as we go and there is plenty of time for you to take me and show me all around
But no one is to bully you anymore ever okay! And you deserve to be happy and have the best.. we have your back and we will stick by your side firmly..”

Mr Walker expressed his eagerness to see them later that day, and gratitude “for all the things you SO SWEETLY and KINDLY WRITE???”. Ms May replied, “I’m packing” and suggested that Mr Walker drive to Mr Gibson’s work site in Jindabyne to “meet his other mate that has the excavator!” Ms Abby also described their meeting as “magical it’s like a miracle happening and no miracle has ever happened to me like this just too have the honour to meet a gentleman like yourself and have the opportunity to be friends is so great.” Mr Walker replied, “This AMAZEING break has come” when he had many things to attend to on the property and his flat was a mess, “YOU stay happy and LOVEABLE and SWEET”.
Ms May replied that she was still quite naïve and expected to learn a lot from Mr Walker, “Omg the place will be blooming and busy you are going to be so happy with us and I know you will like my work because I’m nea[t] and clean freak.” In reply, Mr Walker provided Ms May with a link to a ‘blog’ which he had set up for “Winter Park”. Mr Walker said he did so to provide Ms May with “just knowledge of the area”, although I expect it was to provide Ms May with information about Winter Park. He also emailed “LOVE and RESPECT”.
On 23 January 2023, Mr Walker emailed Ms May again, expressing his gratitude for having met her, “Can’t wait. … Think of our wonderfull situation in life. Presently, I get thoughts etc from miss wonderfully, the best … I think of YOU, most of the time hoping that our communication stays effective. Thankyou”. That evening, Ms May replied to “Sir Neil”, advising that she and Mr Gibson were on their way to his place to leave some bags, “we can’t stay though … I have a court thing on Wednesday then we come to you please be patient with us … slowly slowly we work everything out! We promise xx”. Ms May said that concluding her email with “xx” was “not necessarily a kiss” and “not like affection.” I disagree. The couple dropped off some personal belongings and tools at Winter Park.

Mr Banning’s booking

On 24 January 2023, Mr Walker emailed Mr Banning, asking for some assistance to place an advertisement in Vail for a ski group. Mr Banning replied that he had just got back from Vail and asked to book two weeks at Winter Park, either the first or second week in July and “our usual week” commencing 20 August 2023. Mr Banning’s booking becomes important, as Mr Walker’s discussions with the plaintiffs in respect of Winter Park were always conditional on making the house available for Mr Banning’s usual booking.
Ms May and Mr Walker exchanged good wishes on 26 and 27 January 2023, by email. Mr Walker raised some thoughts, “Hope I get a chance at further dialogue with you.??”, noting that spare materials for the main house were stored in the back room of his flat, “I moved a lot into my room so that the spare room was available, if needed for accommodation.” He mused whether accommodation could be provided by shipping containers, given council restrictions. He also noted that his long-standing guests had requested two weeks’ accommodation, “An offer to[o] good to pass up, in the short term. So you can see that all is not obvious immediately.”
Ms May emailed again on 29 January 2023, noting that her arrival at the farm had been delayed by bad weather and illness. (The couple had intended to have their first night at Winter Park that evening.) Mr Walker replied that he was in good spirits, “now that I have received your interest”, and was attending to maintenance around the farm. Since “walking with DEAN, some fresh outlook has become apparent. … Just waiting for your presence”.
On 31 January 2023, Mr Banning asked to book the week commencing 2 July 2023. Mr Walker emailed Ms May, thanking Ms May and Mr Gibson for their companionship. Ms May replied, “Sir Neil. We are coming early tomorrow morning”. In the wee hours of 1 February 2023, Mr Walker confirmed “I will be on standby as suggested. … You are so kind. Good looking also”.

Offer of short-term accommodation

On 1 February 2023, the couple visited Mr Walker at Winter Park for a second time. Mr Gibson said he could work out how to fix Winter Park. He could organise an excavator and operator. Mr Gibson took a photo of the proposed turning circle road and concrete tank, so he could show Mr Condoleon. Mr Gibson said he could also arrange a lot of the other things that Mr Walker wanted done. Mr Walker agreed that, at their second meeting, he also mentioned the 2021 development proposal (see [11]) and Mr Gibson asked to see it. Mr Walker showed Mr Gibson the offer and Mr Gibson took a photograph of it on his phone.
According to Mr Gibson, he proposed that the couple be given a long lease, with Mr Walker staying in the granny flat and keeping a proportion of the rent. In response, Mr Walker said he had waited 40 years for people like Ms May and himself, and that Mr Walker would give them whatever they wanted as long as it was all drawn up in a simple document. Mr Walker also said that he did not want to involve lawyers due to the costs. Mr Gibson said he would draw something up. Mr Walker agreed that he did mention saying that he had waited 40 years for people like them but then said he did not understand the question and then said, “I’d waited for people … that I respected to come through the gate.”
Later that evening, Mr Walker emailed Ms May, thanking them for their visit “and discussions. ALSO dropping the timber” and some lunch. Ms May replied, thanking Mr Walker for his time, “Dean and I … have good intentions to make this work for all of us very comfortably … I want you to take your time and be confident in your heart that me and Dean only have good intentions towards you.” Ms May noted that she understood their mutual apprehension “because we don’t know one another … only time will tell”.

Whilst I accept that Mr Gibson may well have asked Mr Walker for an arrangement along the lines of the 2021 offer, I consider it singularly unlikely that Mr Walker would have embraced that suggestion at their second meeting. Rather, the contemporaneous emails indicate that the couple wanted the opportunity to run Winter Park and a document to record that arrangement, to which Mr Walker gave some consideration and replied the next day. On 2 February 2023, Mr Walker emailed Ms May further: (emphasis added)

“Perhaps my offer to both of you is, if you desire, the rental of the bathroom, kitchen, bedroom and share carport, until the 30^th of June. Such tenancy is for your, exclusive private, unrestricted domestic use. In years gone by, such situation was effected to acouplefrom THREDBO. This tenancy requires your financial provision of, electricity, gas, firewood to your private use. The premises to be cleaned on expiry of the lease so that future letting on 2nd July is appropriate. To assist your situation, DEAN MAY choose to detail his offer of, my interest in Excavator or Elictric wiring to bathrooms. Only to a similar value to the tenancy lease. I am willing to sign over as detailed as above on a lease form, if desired. COMPLETELY SEPARATE to this lease, till the 30th June 2o23. A further arrangement MAY fall into place, perhaps as ABBY to meet, greet and other, to guests. Such optional and defined in the future. This note is of GOODWILL towards yourselves, and similar has been effected in the past.”

That is, in answer to Mr Gibson’s request for a long-term arrangement, Mr Walker was only prepared to let the couple have the main house for their domestic use – as opposed to using the house as an Airbnb – and only until 30 June 2023, following which they were to vacate the house before Mr Banning arrived on 2 July 2023. Mr Walker was open to Mr Gibson paying rent by doing work around the property but “Only to a similar value” to the rent which would otherwise be payable. Mr Walker was also open to continuing to discuss a broader arrangement.
Ms May replied two hours later, “Ho Hi. Poo”. Ms May’s response indicates disappointment at Mr Walker’s offer. Ms May, however, said that the email was sent by mistake, she did not recall sending it and had not seen it before, “I believe that’s a mistake. I don’t even recall that … I did not see that.” I do not accept Ms May’s evidence in this regard. Rather, the offer of accommodation from Mr Walker fell short of what Ms May was hoping for, being involvement in running Winter Park ski lodge.
Mr Walker also read Ms May’s email as expressing disappointment, responding promptly:

“ABBY, the tenancy words were ment to give YOU some assurances.Yesterday, DEAN, at first asked if I would give ABBY some documented assurances, and talk of tenancy was in response. No other reason, just assurance to YOU. Are you offended??”

Ms May replied, in an email entitled “Friends 4 life” asking Mr Walker “not to stress and overthink the situation.” Ms May advised that they were grateful “to have the opportunity in whatever you decide to allow us on your land, we want to do this so that you can see your dream come true in your life time as you have devoted your Life to this place and land so upon … Meeting you we want to bring it to you. Life for you and us.” Ms May said she would “respect any decision you make … we will have plenty of time to eat and talk over our future planning.”
As I read it, Ms May overcame her disappointment to accept Mr Walker’s offer but left open the prospect of negotiating a more extensive arrangement. Mr Walker also softened his approach, responding later that evening, suggesting, apparently somewhat playfully “Should we rename the property ABBYS WINTER PARK??? I am thinking how wonderfully it would be to pass control to ABBY. Thanks to DEAN for assisting with timbers today”.
On 3 February 2023, Mr Walker emailed Ms May thanking her for generous “food gifts”. Mr Walker also confirmed Mr Banning’s booking for the week commencing 2 July 2023. Later that evening, Ms May emailed, entitled “My dear friend” assuring Mr Walker “we will work together … I will guarantee you that myself and Dean come with pure good intentions and I will never hurt you or cross the line with you … I understand your concerns and worries but I assure you, You have my word that I WILL NOT HURT OR LET ANYONE HURT YOU OR do any wrong by you I promise you to not only do right and what you want and allow us to do, I hope to be able to make your dream come true and live to see your land come to life again … I promise to not do anything you are not happy with and to always respect this land.” As I read it, Ms May remained keen to explore the possibility of doing more at Winter Park than simply renting a bedroom in the main house until 30 June 2023.

Couple moves in

The couple moved into Winter Park on 3 February 2023 and occupied a bedroom in the main house. It should not be thought that the couple were there all the time. Mr Gibson was working in Jindabyne. Ms May returned to Sydney with reasonable frequency, to see her children and participate in legal proceedings. As I read the contemporaneous emails, the couple were away from Winter Park more than they were there.
On 4 February 2023, Mr Walker emailed Ms May, thanking her for dropping in to Winter Park. Mr Walker seemed disappointed that Ms May’s visit had been delayed. Mr Walker wanted to send her copies of emails sent from “Guest friends”, presumably a reference to Mr Banning, “If you were here for longer periods, I would a quaint you with such e mail content which would serve to better understand Winter Park … Presently, you and DEAN are just peering through the window at what transpires within”. Mr Walker also suggested that Ms May could take a job at a ski resort and offered further suggestions in respect of “your catering concept” of providing Lebanese cooking to his guests. Ms May expressed enthusiasm, “Yes yes yes that for sure I can do I was already thinking I was going to run it by you!! Most definitely I shall do my best to keep them happy for you! Plus I love cooking and I’m cooking for us as we stay with you”. That is, Ms May was keen to explore the possibility of a greater role at Winter Park.
Later that evening, Ms May emailed “Sir Neil” advising that they were trying to get a ride-on mower to bring to Winter Park to mow the front area near the entrance and around the house “don’t you think that will be a good thing too do?”. On 5 February 2023, Mr Walker replied that he was having difficulty maintaining the property, including weeds, “However other priorities are paramount. The house interior being an example, for that is where, in the past, guests are, hopefully present and are busy and SKIING … Yes I am behind in manufacturing the property and not keeping up.” The slopes also made grass cutting unsuitable for mowers. Ms May pressed for permission to tidy the outdoor areas:

“Dean has organised paint for inside and I’m starting to clean and fancy and freshen the bedrooms up, oh please give us your okay to cut the weeds in pleaseeee.. it will be so inviting for visitors to see such neatness and new beginnings.”

Mr Walker resisted, maintaining that he was slowly attending to the tasks around the property, given his age and health, “Presently, I have been working to roof the front porch that could possibly serve as a future restaurant in the lounge room.” Notwithstanding his slow progress, Mr Walker emailed “I DONT WANT YOUWORKINGFOR ME,I WILL GET THERE EVENTULY.THANK YOU SO MUCH.” That is, whilst Mr Walker may have been keen to have the couple assist in maintaining the property, he was not in favour of the couple re-decorating the house and was resistant to changes being made.
Ms May also pushed back by email that evening:

“Neil,. Do you want too upset me??
Because if you do then you are doing a good job about it.
I want to be the daughter you never had the friend who genuinely cares for you..
Let me help please it’s giving me reasons not too give up I don’t want to get a job anywhere I don’t want too work for anyone.. I want to work for you and help you live to see your dream hold your name forever xx”

Of this, Ms May said in cross-examination, “I actually genuinely wanted to do it from my heart, yeah.” Whilst I accept that Ms May was keen to make changes to the house and surrounding land to improve its presentation, I do not accept it was out of benevolence for Mr Walker.
Mr Walker relented, thanking Ms May for her well wishes “And wonderfully appearance ... It may come to pass that as time develops your assistance will be pivotal, however such may be in meet and greet, management or the like.” As for the manual tasks then at hand, Mr Walker said that he would go to Cooma to buy some paint for Mr Gibson, “It may come to pass that you may help with those curtains, or whatever. Other style ways you can support further than you have. … You have listened to me on some matters, where others have not, that is special support.” Ms May replied, insisting that they discuss what materials were needed and buy this together.
On 7 February 2023, Mr Walker emailed Ms May following a trip to Cooma “where I endeavoured to learn more about painting or finishing bathroom walls, alas quite involved.” Someone had also brought a lawnmower for him, but repairs were required. “Progress is so slow, as usual. … stay sweet”. Ms May replied to “sweet gentleman” advising that she and Mr Gibson would come to visit that evening. They did not come. On 8 February 2023, Mr Walker emailed Ms May, “Missed you last evening. Had things to discuss with you.” Ms May emailed “Best Gentleman,” advising, “Neil, I so miss you” and would be heading to Winter Park when Mr Gibson finished work, “we shall talk over having something to eat”. Mr Walker replied that that was “great news”.
On 10 February 2023, Mr Gibson placed some bollards on the road so that the truckdriver would know where to deliver the excavator. The excavator was provided by Malibuild and operated by Mr Condoleon. Mr Condoleon said that Mr Gibson showed him the earthworks that they wanted done, in the presence of Mr Walker. Mr Walker indicated how he wanted the work done and his approval of the works. Mr Condoleon said he took instructions directly from Mr Walker and sometimes from Mr Gibson. Mr Condoleon was aware that, as the owner, Mr Walker made the decision. Mr Walker gave him instructions in relation to cut and fill works, and the removal and reinstatement of a water tank. Mr Walker was almost always present and watching as Mr Condoleon carried out the work. Mr Gibson said he returned to Winter Park after work each day to work with Mr Condoleon. Mr Gibson also repaired and cleaned out the gutters and the stormwater drains.
Mr Condoleon said he undertook cut and fill works to create a carpark of approximately 900 cubic metres. He scrapped the existing road. He removed and reinstated a steel water tank. Mr Condoleon cut the existing stormwater pipe to the tank and reinstated it. Some works were unsafe due to steep batters, that is, the side slopes that connect the road surface to the contour of surrounding land. Mr Condoleon placed logs to mark the areas where work was incomplete. Mr Condoleon understood that the works he undertook were preparatory works and Mr Gibson was to complete the works by building and installing retaining walls, arranging a stormwater runoff, and installing handrails and a bollard. As will be seen, the works were not completed, which has led to significant problems: see [195].
Mr Walker did not remember giving Mr Gibson directions on what should be done at the property. Mr Walker said he observed but gave no instruction. I do not accept Mr Walker’s evidence in this regard. Mr Walker took a keen interest in every aspect of his property and would not have left such a matter to Mr Gibson. Mr Walker also said he understood that the excavator was doing work as part of the arrangement he had with the couple, and the works would never exceed the value of the tenancy to 30 June 2023 and would be finished by then. I accept Mr Walker’s evidence in this regard, where this arrangement was clearly set out in his email of 2 February 2023, which it was reasonable to think that the couple had accepted by moving into the property the next day and proceeding to arrange the excavator.

A 99-year lease?

According to Mr Gibson, on the same evening that Mr Condoleon began work on the property, the couple visited Mr Walker to have dinner with him. Mr Gibson said that they needed a lease so that they had some security if they kept doing all this work and Mr Walker said, “I’ll give you anything”. Ms May hand-wrote a draft lease agreement of one page, by which it was proposed that Mr Walker would grant the couple a 99-year lease, together with an option to buy Winter Park. The couple would share the income with Mr Walker at $1,100 a month plus 20% of the profit. Mr Walker said he would read the document, but they did not hear from him for several days.
While Mr Walker denies that he agreed to any such lease, it is unclear whether he also denies that the conversation took place. It is not entirely clear why the couple needed a lease to have security “if they kept doing all this work”, where the work being done was in return for rent-free accommodation. But in any event, the fact that the couple’s first draft of a lease was in such preposterous terms suggests that the couple were either commercially unsophisticated or over-estimated the strength of their new bond with Mr Walker or his naivety (or a combination of these). Mr Walker was certainly on notice, however, that the couple had ambitions in respect of the property. The fact that Mr Walker did not reject the proposal out of hand also suggests that he then thought favourably of the couple and was not opposed to them being there, or potentially having some kind of role or interest in Winter Park.
On 12 February 2023, Mr Walker emailed Mr Banning, advising that there was “a nice chap, with an excavator doing a small amount of work on the track in front of the house with the intention of improving your parking arrangements.” Mr Banning was asked whether he liked Lebanese food, “It may come to pass, that a lovely LEBONESE lady may prepare meals for YOU, on one evening that you are here??? All up in the air at present, just interested in your reaction???” Mr Banning replied, “we could certainly use her services for a night.”

Advertising on Facebook

According to Mr Gibson, Mr Walker asked them to advertise Winter Park to secure bookings for the winter ski season. Mr Walker also told the couple that they could have full management of letting the guesthouse, as long as he was consulted beforehand. Mr Gibson asked his daughter to post an advertisement for Winter Park. On 13 February 2023, Mr Gibson’s daughter posted a message on Facebook: (emphasis added)

“… me and my family have just taken over a ski lodge [in] crackenback! We are just putting it out there to see if there is any interest for this season. We are looking for long and short term rentals for the winter season!!”

Mr Gibson denied instructing his daughter what to put in the advertisement, “They’re words of a 15-year-old daughter.” However, the wording of the email was identical to Mr Gibson’s email at the time; more likely, he provided the wording: see [57]. Mr Gibson said he discussed the advertisement with Mr Walker on several occasions, “We spoke about it every day.”
Against this, Mr Walker said he did not agree to advertising the property as he preferred to know the guests who were staying at the property. While it is possible that Mr Walker made comments generally along the lines described by Mr Gibson, more likely Mr Walker did not clearly reject suggestions along these lines made by the plaintiffs. It does appear to have been a case of ‘give someone an inch and they’ll take a mile’. Mr Walker appears to have been largely occupied at this time with travelling to and from medical appointments in Canberra.
Later that day, Ms Nunan responded to the advertisement, advising that she managed staff accommodation for Perisher for the winter season and wanted to inspect the property with a view to leasing it for 16 weeks. Mr Gibson’s daughter replied that she would speak to her father that evening and let her know.
On 13 February 2023, Ms May also emailed “Sir Neil” advising that she and Mr Gibson were heading back to Winter Park later that night, apparently from Sydney. Mr Walker returned home to Winter Park himself later that evening from a medical appointment and emailed Ms May, asking her to let “MAL” know that he had brought back fuel for the excavator which he had left “beside the beast”. Mr Walker advised he had also received a positive response “for one nights catering in July and who knows what may eventuates in August, when they return. Let you read the email yourself.” Presumably, this was a reference to Mr Banning’s email: see [50].
On 15 February 2023, the couple approached Airbnb. Mr Gibson said he talked to Mr Walker about approaching Airbnb, although this was not referred to in his affidavit, for which he could give no reason.
On 19 February 2023, the couple drove Mr Walker to Canberra for a medical appointed. On 20 February 2023, Mr Walker celebrated his 82^nd birthday and received birthday wishes by email from Ms May, “You’re very special to us and a big part of our lives”. Mr Walker replied, thanking Ms May and Mr Gibson for driving him to Canberra, “Seems a permanent situation and I wish to thank you for the ongoing pleasure that you give me.” Ms May responded with enthusiasm, hoping that Mr Walker would confide in them in the future to allow them to make upcoming medical visits a little easier, “all I can say is like I’m living a dream I promise that’s how I feel.. and all thanks to you … it brings tears to my eyes when I think about what you have allowed me too experience and giving me hope too not give up. You truly are special and thanks to you I’m living a magical dream. Xxx”.
Later that day, Mr Gibson’s daughter sent a Facebook message to Ms Nunan reporting that she had spoken to her father “and he would love to talk to you!” The daughter provided Mr Gibson’s email address to contact him directly. Ms Nunan promptly emailed Mr Gibson in respect of “the possibility of a potential Private Winter Lease Agreement with Perisher” to house staff. Ms Nunan asked to meet “to have a walk through your property”. Mr Gibson replied promptly, “great to hear from you ! Im sure Sienna has filled you in , We have just taken over the property and are doing some major changes , ive had to come up to Sydney for a couple of days , but should be back by Thursday does this suit you ??? … It would be nice to have your input !”. Ms Nunan arranged to inspect the property at 11.00 am on 23 February 2023.
Meanwhile, Mr Walker thanked Ms May “for nicest e mail … Such personal regard, does not happen that often, thank you.” Mr Walker advised that he had another medical appointment in Canberra on 2 March 2023 in the morning, which may mean an overnight stay in Canberra or leaving very early in the morning. Ms May replied, “hopefully we shall go together and have an enjoyable day together”.
On 21 February 2023, Ms May emailed Mr Walker from Sydney “Sir Neil, I miss you and our new home. … I feel on edge here in Sydney and it doesn’t feel like home anymore … I feel safe at your place I feel safe around you and on the farm … I will remain sad until I arrive back to you … Thinking of you xx”. Mr Walker responded in kind, “Thank you very much, I have some of the same personal feelings.”
The balance of Mr Walker’s email is difficult to understand, but I read it as criticising Mr Gibson for selling accommodation as an agent “OBLIVIOUS to VIBES and HOSPITALITY or COMMARADIE”. It would appear from this email that Mr Walker was then aware of Mr Gibson’s efforts to advertise the property, but was displeased, consistent with his evidence that he preferred to know the guests who were staying at the property. Mr Walker agreed that Mr Gibson told him that someone from Perisher would be coming to view the property and Mr Gibson wanted to see what offer they would make for it for the winter.

On 22 February 2023, Mr Walker emailed Ms May, hoping that all was well in Sydney. Ms May replied that she was waiting patiently to return to Winter Park, “to the magical land where you opened yours doors for me …”. Mr Walker responded in kind, “I most humbly enjoy your heartfelt emails, your lovely e mails have been waited for, for a long lifetime. There is so much content to discuss”.
The emails between Ms May and Mr Walker at this time comprise a strong campaign by Ms May, which I consider to have been highly manipulative, with a view to stimulating an emotional attachment from Mr Walker. This was having some success. Mr Walker said there was some relationship in the first month, “Then it went downhill.”

Perisher has a look

On the morning of 23 February 2023, Ms May emailed Mr Walker that the couple were on their way to Winter Park. At 10.25 am, Mr Gibson emailed Ms Nunan, advising that he may be running 10 to 15 minutes late on his drive back from Sydney. Mr Gibson did run late.
When Ms Nunan arrived at Winter Park, she saw an old man on a ladder. According to Ms Nunan, Mr Walker said, “I never get lovely visitors coming to visit me”. Ms Nunan said she was there to meet Mr Gibson. Ms Nunan observed “It’s like he didn’t know [Mr Gibson] … It was all about Abby.” Mr Walker told Ms Nunan that he owned the property and lived there for some 40 years.
Mr Gibson arrived shortly afterwards with Ms May and took Ms Nunan inside the house to have a look. Mr Gibson was in something of a rush, given his late arrival. During the inspection, Ms Nunan said that a particular bedroom would be great for staff, but Mr Gibson said that he and Ms May would be staying in that bedroom. Ms Nunan said that, if Perisher rented the property, it would take on the whole house. Ms May replied that the couple wanted to be able to occupy the bedroom.
Mr Gibson also sought Ms Nunan’s opinion on what else should be done to the house, such as building a deck. They talked about the kitchen not being able to accommodate 18 people; Ms Nunan said it would need double microwaves, double kettles and the like. Finally, Mr Gibson also asked Ms Nunan how much she thought the house was worth, and Ms Nunan ventured the figure of $5 million. Mr Gibson appeared keenly interested in this information.
On leaving the property, Ms Nunan was concerned that Mr Gibson may have been rushing her to view the property as he did not want her to talk to Mr Walker. (Whilst Ms Nunan got the impression that she was whisked away so that Mr Walker was unaware of the reason for her visit, Mr Walker was aware that she was coming to look at the house; Mr Gibson’s haste was more likely due to his lateness.) Ms Nunan was also concerned that the couple may be planning to rent the property without Mr Walker’s knowledge. Following the meeting, Ms Nunan emailed Mr Gibson a letter setting out a proposed lease arrangement. At the outset, however, Ms Nunan stated:

“I do need to mention that the actual agreement and funds will need to be in the name of the owner. Was the owner the gentleman I met before you arrived or are you purchasing the property?”

Whilst some of Ms Nunan’s suspicions may have been unwarranted, there was clearly something about the interaction between the plaintiffs and the defendant which struck her as odd at the time. In any event, Perisher offered $72,000 to rent the property for the 16-week ski season, during which time Perisher would take over management, care and upkeep of the property. Perisher’s requirements were set out in detail, including “Should you require access to the property during the lease period you will need to give at least 48 hours [notice]”. In addition, the premises needed to have a minimum of basic furniture to accommodate staff. A detailed list was given, including two fridge-freezers, a TV and fully functioning kitchen with basic equipment, crockery and utensils.
According to Mr Gibson, the couple discussed Perisher’s offer with Mr Walker that evening. Mr Walker said he wanted to continue leasing Winter Park to his regulars such as Mr Banning. They discussed that renting Winter Park on Airbnb would get more money, allow Mr Banning to stay and they would not have to do the work upfront that Perisher wanted. Mr Gibson also said that, even if Mr Walker wanted the offer, he could not have Winter Park ready to be leased on the terms offered by Ms Nunan. They agreed to decline the offer. Mr Gibson informed Ms Nunan, “unfortunately this year i will not be ready for that sort of rental, the house has been unoccupied for so long we really have to iron out a few problems.”
Mr Walker agreed that he talked to Mr Gibson about the visit from Perisher but did not receive a copy of Perisher’s letter from Ms May and Mr Gibson. I accept that Mr Walker was consulted, at least in general terms, about Perisher’s offer and a decision was made to refuse it. It was not particularly practical to accept Perisher’s offer, where it would have required substantial change to the way Winter Park was run and Mr Walker was generally resistant to change. Nor would Mr Walker (or the couple) likely have been prepared to make the modifications to the kitchen, or to fund the modifications, in order to meet Perisher’s specifications. Of course, the proposed arrangement did not suit the couple either, as they would not be able to continue to live at Winter Park rent-free. Given later events and contemporaneous records, it is likely that the couple did not show Mr Walker the letter from Perisher nor disclose the amount of the offer, and I so find: see [92]-[94], [112], [114].

30 + 30 with option to purchase?

On the same day that Ms Nunan inspected Winter Park, 23 February 2023, Ms May prepared a handwritten “AGREEMENT BUSINESS CONTRACT” between Mr Walker and Mr Gibson, giving Mr Gibson authority “to take over full management of WINTER PARK” and responsibility for “all financial money handling, Winter Park future cost and needs, maintenances and requirements. Any bills or repairs including improvements of renovations will all be part of Dean Gibson repsonsibles. All repairs and alterations must be approved by Mr Neil prior to starting.” Further, the agreement proposed Mr Walker would offer a 30 year lease with a 30 year “optional, together with an option to purchase”. Mr Walker would receive monthly payments “which is inclusive to and remains private”. Mr Gibson was required to approach Mr Walker for any major work on the property “and must not enter before staff allow you to come here.” According to Mr Gibson, Mr Walker did not sign the document but took the original; Mr Walker said he would think about it.
Mr Walker said this document was never provided to him. Three features of the handwritten document suggest that this may be the case. First, the document appears to be notes only, with much crossing out and alteration. The handwriting ends mid-sentence, suggesting that the notes were abandoned before the task was completed. Second, the handwritten note was prepared the same day that Perisher submitted its offer and appears to have been directed to how the plaintiffs and defendant’s use of the property would be modified to meet Perisher’s requirements, for example, they “must not enter before staff allow you to come here”. Where it was decided not to accept Perisher’s offer, the handwritten note became otiose. Third, unlike later drafts of a proposed lease, the note made no provision for the document to be signed, consistent with the abandonment of the note.
Against this, the couple no longer retained the original document, which is consistent with them giving the note to Mr Walker. Unlike the handwritten note of the 99-year lease, the couple appear to have taken the precautionary measure of photographing the document before giving it to him. On balance, I accept that Ms May gave the note to Mr Walker.
Mr Walker had received an email from Mr Gagen, asking to book a week in August after Mr Banning’s stay. On 27 February 2023, Mr Gibson replied to Mr Gagen via Mr Walker’s email address: (emphasis added)

“Hi John, it’s Dean and Abby from Winter Park, Sir Neil Walker has given us the honours to manage his property. We would love to continue to offer our accommodation service having you stay with us, we will be doing some work to the Ski lodge in the coming weeks ahead. We are currently taking bookings and would like to pass on our email and number if you would like to enquire further information.”

The fact that Mr Walker permitted Mr Gibson to respond to Mr Gagen using Mr Walker’s electronic device suggests that Mr Walker was comfortable with the couple communicating with this long-standing guest and thus managing the ski lodge to that extent.

Management agreement

On 2 March 2023, Ms May took Mr Walker to Canberra for medical treatment. The next day, 3 March 2023, Mr Walker prepared a handwritten note, which he appears to have signed, as follows:

That is, Mr Walker assigned management of Winter Park to the couple, who were to assume the liabilities of operating the guesthouse and property maintenance. According to Mr Gibson, Mr Walker came into the main house, passed him the document and said, “Is this good enough?” Mr Walker agreed that he had spoken to the couple about management rights “but not a lease”. Mr Walker also said:

“When you came to Winter Park, you were told by myself that subleasing Winter Park out was not viable, because Mr Banning had a fixed booking over that period of time. … after that statement … an agreement was made that if you catered for Mr Banning in his July booking and his August booking, then the rest of the house would be viable, or available, for tenancy under your control.”

Mr Walker said he was not clear whether he wrote this document but agreed that the markings on the paper were similar to his signature. Forensic document examiner, Mr Ganas, observed the signature was consistent with samples of Mr Walker’s signature, sharing both similarities and differences in characteristics. As the handwritten document was not an original, Mr Ganas’ ability to determine whether it was in fact, Mr Walker’s signature was limited.
I am satisfied that Mr Walker prepared and signed this handwritten note. The handwriting and his signature is similar to other examples of his writing in evidence. Mr Walker had travelled with Ms May to Canberra and back the day before the document was prepared. During that journey, Ms May likely pressed Mr Walker for a lease. This document was produced the next day and reflected what Mr Walker was prepared to give the couple: he was only prepared to give them the right to run the ski lodge. The handwritten note did not refer to a lease. The proposal in Ms Mays handwritten note of 23 February 2023, proposing a 30 + 30 year lease with an option to purchase, was thereby clearly rejected.
Mr Walker’s proposal appears to have been acceptable to the couple, at least for a while. On 27 March 2023, Mr Gibson bought various equipment totalling $878, including a submersible bore hole water pump. Mr Gibson said he arranged to reinstate a service bore and a new bore pump. Mr Gibson purchased a generator to power the bore pump. He removed 40 metres of galvanised pipe from inside the bore. This enabled the water tank to be upgraded to a larger capacity. Mr Walker remembered he and Mr Gibson re-doing the bore, “I initiated the decommissioning of the bore, and I failed, and you took over and you more or less completed the job. You did a greater portion than I. … You had the power tools, I had the water bore. It was your power tools that managed to withdraw the old bore”.
In March 2023, Mr Banning got a call from Mr Gagen, who complained that he was having trouble booking a stay at Winter Park as Mr Gibson and Ms May were not returning his emails. Mr Banning decided to check on Mr Walker. On 29 March 2023, Mr Banning emailed Mr Walker, inquiring whether Mr Gibson and Ms May were “living in the house to help you or do they live offsite?” Mr Walker replied:

“A and D were offered a staff bed in my flat, however They wrangled use of the big house.
STRANGE arrangement!!! They have been advised to vacate for CRAIG BANNING and seem OK with that. I spoke to DEAN and he advised that he had spoken with [Mr Gagen] and resolution was under way, between them. I think A and D have become a little more realistic as time has eventuates. Now may be a good time for the cha[t] at your office to again request accommodation. From DEAN.
… ABBEY and DEAN have conducted much work around the farm, much more than I had resource for. MY summer income has been traded against bulldozing and maintenance. They are a nice friendly pair …”

Mr Walker thanked Mr Banning for martialling a group to come to Winter Park, “That is the reason that when passing over to A and D, I stipulated that CRAIG BANNING and FRIENDS, WOULD be sanctioned, for at least this year. A and D seemed to mellow since first taking over. They are pleasant to be with, expect some changes, both now and in the future”.
Mr Walker’s email reflects his understanding that the work being done by the couple on the property was in exchange for rent. This is consistent with the arrangement he offered at the outset, on 2 February 2023. The email also indicates that the couple were then content with the arrangements in place, including Mr Walker’s offer to manage the property made on 3 March 2023. As the plaintiffs do not sue on the management agreement, it is not necessary to determine whether it was, in fact, a valid contract.
On 30 March 2023, the plaintiffs and Mr Walker took a trip to the Victorian high country. According to Mr Gibson, the purpose of the trip was to look at the Victorian ski fields to get ideas about how to run a guesthouse or ski lodge. Mr Walker agreed that he may well have told Mr Gibson that various things they saw were “how I want to do it at Winter Park”; Mr Walker said “I wish that one day I would do many things.” Mr Walker gave Mr Gibson a book on management. Ms May took a photograph of the men together; both are smiling. Mr Gibson paid for the trip.
Mr Gibson took the opportunity to again request a written document, like a lease, to be certain in respect of their arrangement. According to Mr Gibson, Mr Walker said he would give them a lease. Mr Walker also asked Mr Gibson to discuss a price increase with his long-term customers, as he was uncomfortable having those discussions. On 31 March 2023, whilst on this trip, Mr Walker sent a further email to Mr Banning clarifying the arrangements for bookings at Winter Park:

“CRAIG BANNING MADE two bookings for his groups. These bookings were made quite early and were accepted. Following such, WINTER PARK was passed to ABBY and DEAN, for future management. A condition that bookings held before this time were honoured, on behalf of NEIL, AND FUTURE BOOKINGS were at the discretion of ABBY and DEAN.”

Three days later, they returned to Winter Park. On 4 April 2023, Mr Gibson emailed Mr Gagen regarding his booking for Winter Park. Mr Walker agreed that he referred Mr Gagen to Mr Gibson to “help him with accommodation, or whatever.” As Mr Gagen wanted to come to Winter Park for a week “that was under your control, so he was referred to you.” Mr Gibson advised Mr Gagen that he had “now fixed” the internet issues at Winter Park and was “currently doing some major improvements to the place.” (Mr Gibson had just subscribed to an internet plan at Winter Park, at $125 a month.) Mr Gibson said he was doing his best to honour Mr Walker’s old customers, who had stood by him for so many years, but Mr Gagen’s dates were in “our peak period! So I’ve done my best with the pricing so for the week the house is $7k which I believe is more than fair considering the dates …” I accept that Mr Gibson’s dealings with Mr Gagen had the imprimatur of Mr Walker, who later emailed Mr Banning, “DEANS quote to [Mr Gagen] is more in line with reality”.
Mr Gagen replied on 6 April that he may be interested in renting only half of the house, “So based on your figures – half the house would be $3,500 in cash to Neil – does that sound right??” Mr Gibson responded – his response is not in evidence – which does not appear to have been satisfactory to Mr Gagen. Mr Gagen enquired on 11 April 2023 whether Mr Gibson wished to reconsider Mr Gagen’s proposal “or I will have to make other arrangements”. Mr Gagen told Mr Banning that he did not proceed with the booking as Mr Gibson wanted an amount which Mr Gagen considered to be excessive. Mr Banning agreed that $7,000 was excessive. The conversation, however, caused Mr Banning to worry for Mr Walker.
Mr Gibson was due to attend Cooma Local Court on 4 May 2023 in relation to a driving offence. Mr Walker wrote a reference for Mr Gibson, describing Mr Gibson as a skilled carpenter with a helpful disposition, who had willingly effected maintenance duties around Winter Park “free of charge”. The fact that Mr Gibson’s work was “free of charge” was mentioned three times in the reference. The reference may be thought consistent with Mr Walker’s understanding that the work being done at Winter Park was either in exchange for rent-free accommodation or in accordance with Mr Gibson’s obligation to maintain the property under the management agreement.
However, Mr Gibson was concerned at the suggestion that his work was “free of charge”, as he did not think this reflected the arrangements with Mr Walker. On 3 May 2023, the couple purchased a “Land Lease Agreement NSW” from an online legal stationer.

First contact with police

Mr Walker was becoming concerned about the plaintiffs’ use of the main house. On 4 May 2023, while Mr Gibson was in Cooma attending court, Mr Walker emailed Mr Banning “as I have some matters to pass to you”. Mr Walker raised concerns regarding Ms May and Mr Gibson:

“I stipulated to this DEAN, way back, that he could manage the lodge PROVIDED that CRAIG BANNING would have school holidays and plus, August. And this was agreed, all along. I met a woman on the bus who said she was a [chef], I had in mind that she was to be accommodated in my back unit and visit the house if required by guests, chef duties. At a meeting at [Winter Park], the … chef, spat the dummy about moving into my flat. She had her boyfriend with her and he offered to bring a FREE bulldozer, worth heaps. Therefore, I gave them rights to a room in the big house, near the kitchen, expecting that they move out to honour CRAIGS agreed booking.no contract papers.
They moved in, the bulldozer worked on parking, DEAN doing odd jobs around the house. However, they seemed to command the back two bedrooms a, as their own.
Looking back, all odd jobs seemed to reinforce their command of the kitchen and back two rooms. HE and his mates are tradies with each one with more tools than Bunnings. Hence If they SQUAT at the house, TRADIES with every tool and a bulldozer could OVERCOME ALL LOCKS, CUT OFF ELECTRICITY and GAS ETC ETC that is my fear??? I CAN NOT THINK OF A SOLUTION. CAN YOU??”

Mr Banning replied immediately, expressing that he had been concerned about Mr Gibson and Ms May “from day one, and even more concerned after [Mr Gagen] tried to deal with them.” Mr Banning was concerned that they were there to abuse Mr Walker, by making a claim on his estate as dependents. Mr Banning suggested he remove them from his property, “I think they are asking $7k a week knowing no one will take it at that price and hence they get to live in the big house rent-free. If they won’t leave call the police, or can call the police for you.” Mr Walker promptly replied, “YOU ARE 200 PERCENT CORRECT. … I reasoned, rent free value in exchange for bulldozing.?? They used my electricity and gas. I recently refused to pay new gas, and electricity due soon? … They spend up big on tools etc. And have costs, [your visit in] June is far away.” Mr Walker asked Mr Banning to assist in preparing a written demand, “Then the cops.” Mr Banning agreed, “This is really concerning I am very worried about you.”

Mr Walker decided to find out the outcome of Ms Nunan’s inspection in February 2023. Mr Walker went to Perisher’s office in Jindabyne. Ms Nunan had trouble recognising Mr Walker, as they had only met once but he also seemed to be in a far worse condition than when they had met in February 2023. Mr Walker no longer looked as if he would be able to climb a ladder. Mr Walker appeared to be shaken and had not been looking after himself; he was in old clothes and looked pale. Mr Walker said he needed to know what Ms Nunan had given Mr Gibson. Ms Nunan asked whether Mr Walker had received the offer sent in February 2023, and he said he had not. Mr Walker also said that he did not know what Mr Gibson and Ms May were doing and said that they were trying to take his property. Mr Walker appeared upset when he spoke and appeared to be stressed and worried. His voice was shaky.
At 3.13pm on 4 May 2023, Ms Nunan emailed Mr Walker the letter of offer made by Perisher, adding in her email “I was under the impression it was Dean Gibson’s Property but as I met you before Dean arrived you told me it was your property. I do not have a good feeling about this Neil and I think you need to get legal advice to evict Dean and his family from your property immediately”. Ms Nunan advised that she had spoken to a local solicitor, who may be able to help, as well as a police officer at Jindabyne, “This has RED flags all over it. … DO NOT sign anything Dean Gibson or his family gives you.”
At 3.35 pm, Mr Walker emailed Mr Banning, reporting “I have been collecting statements from people that have been involved with dealings.” Mr Walker added that he may travel up to Sydney to speak with Mr Banning. Mr Walker also replied to Ms Nunan, thanking her for her advice, “it seems so CAREING of YOU TO expend your care in this matter.” Mr Walker asked Mr Banning to send a request for confirmation of his bookings, which Mr Walker would pass to Mr Gibson together with a demand to make the whole house available for Mr Banning. In addition, Mr Walker reported “PERISHER cam[e] for house inspection months ago, and made an offer for accommodation. DEAN did not accept, over $72k. Today today PERISHER told me that DEAN, stated that it was his house”. (Mr Walker may have misunderstood Ms Nunan in this regard; she noted in her email that she was “under the impression” that it was Mr Gibson’s property but not necessarily that Mr Gibson said this directly.)
On 5 May 2023, Mr Banning sent Mr Walker an email, as requested, seeking confirmation that he would have the full use of the whole house for his two bookings. Mr Banning also offered to increase the amount paid to $5,000 for the week. (Mr Banning said he did so having regard to the figures in Perisher’s offer). Mr Banning sent a further separate email to Mr Walker asking that he let him know how he went with Mr Gibson; he suggested that Mr Walker go into Jindabyne and call him from a pay phone.
On 6 May 2023, Mr Banning sent a further email to Mr Walker “as I am extremely concerned about your situation. If I don’t hear back from you today I will call the police and ask them to drop over and check on you.” Mr Walker emailed Mr Banning to let him know that he had driven into Jindabyne to call him, but had called Mr Banning’s office number. As it was Saturday, no one answered Mr Walker’s call. Mr Banning gave Mr Walker his mobile number, but Mr Walker did not call him, so Mr Banning concluded that he did not need him or the police.

30 + 30 + with option to purchase?

In fact, on 6 May 2023, the couple sat down with Mr Walker to go through the document they have bought online, entitled “Agreement to Lease of Agricultural or Rural Land” variously dated 20 February 2023 (on the first page) and 6 May 2023 (on the last page). Given the date of purchase of the document from the legal stationer, I conclude that the later date is correct. According to Mr Gibson, the couple went through the document with Mr Walker, noting his response to each clause. Ms May completed the document. As I understand Ms May’s handwritten notes added to the pro forma document, the term of the lease was 30+30 years “+ after 30 to extend” together with the option to purchase the land. The tenant would be Mr Gibson, who would pay rent of $40,000 per year.
The document, with its handwritten annotations, was given to Mr Walker to consider, but Mr Walker never returned the document. Mr Gibson agreed that Mr Walker never signed the document or said that he agreed with it, “Just didn’t mention it, no.” This is, of course, hardly surprising where Mr Walker was clearly unhappy with how arrangements with the couple were then unfolding. Mr Walker said he felt that he was under pressure and began to hide in the granny flat to avoid contact with the couple. Mr Walker stopped answering the door to his granny flat.
Mr Walker was also unhappy with the changes that Ms May was making to the interior of the house, without his approval. Mr Walker said he asked her to stop but received an unfavourable response. Mr Walker said the couple talked over him when he tried to speak; he felt that whatever he said, they would do what they wanted regardless. It also bothered Mr Walker that the couple had never told him of the outcome of Ms Nunan’s attendance at the property.
In mid-May 2023, the couple arranged for professional photographs to be taken of the property and posted on Booking.com. The six-bedroom house “provides a flat-screen TV and a kitchen with a dishwasher and oven. Towels and bedlinen are featured.” The property was hosted by Dean & Abby, “We will always be on standby so never too far away, happy to help anytime!!!!” Mr Gibson said the words “hosted by Dean” were provided by Airbnb and Mr Walker “didn’t want his name on it”. Mr Gibson said that Mr Walker was present when the photographs were taken and discussed the advertisement of Winter Park. Mr Walker recalled being told that there was a photographer coming to take photographs for tourism but did not see the photographs. It does not much matter, where Mr Walker had agreed to let the couple manage the property, albeit he was becoming increasingly unhappy with that arrangement.
Mr Walker said that, over the next few weeks, the couple came and went every three or four days. Whilst he received conciliatory emails, the couple were aggressive to him in person. He was distressed, kept to himself, and became easily upset. He often went to bed earlier than usual and cried himself to sleep. However, Mr Walker did not raise this with the couple as he felt it would only result in an argument, “I walked away from anything I disagreed with.” Mr Walker felt his health decline and mainly stayed in the granny flat. On 29 May 2023, Ms May emailed Mr Walker, “Another booking confirmed!!”.

30 year lease?

On the morning of 7 June 2023, Mr Banning sent an email to Mr Walker, asking how he was going “with your house guests?”. Mr Walker replied that he had been assured that the house would be available for Mr Banning for the two weeks booked. Mr Walker advised that, whilst there had been some changes at Winter Park, Mr Banning’s booking would be given priority. Further, “Summer has b[r]ought about concerns for myself.”
That day, Mr Walker is said to have executed the lease the subject of these proceedings. The document is a Residential Tenancy Agreement issued by the Real Estate Institute of New South Wales, likely in 2014 (according to the copyright stamp). The document was one of the forms kept by Mr Walker in the house for skiers to complete in the event that the local council queried the legitimacy of his operations: see [10]. Ms May added handwritten dates to the form, recording that the agreement was made on 7 June 2023 at Winter Park between Mr Walker as landlord and Mr Gibson and Ms May as tenants. The term of the agreement was from 6 June 2023 for 30 years. Rent was to be paid in cash to Mr Walker, being 20% of all sales. Ms May would live on the premises. Mr Gibson was responsible for repairs. A condition report dated 6 June 2023 was said to be included (although does not appear to have existed). An additional condition provided:

“Mr Neil Walker gives permission to Dean Gibson to manager and look after Winterpark, this includes main[ten]ance and to operate Winterpark to use and run accommodation …. Dean Gibson is responsible for all bills occur[r]ing at the premises, including all costs to repairs and any arising future costs been manager, to Winter Park, Future and minor or none minor renovation are to agreed with Neil Walker prior to start. Neil Walker remains on his premises at all times and remains sole owner to Winter Park.”

The couple dropped the proposed option for a further 30-year term and an option to purchase the land, perhaps figuring that Mr Walker would never agree to that. I will return to whether Mr Walker in fact signed this document at [158]. That evening, Mr Banning emailed Mr Walker, advising “glad you ok I may be dropping down to the snow Saturday week … I will drop by to see you.” At 10.00 pm, Mr Walker replied , “It would be most desirable if you called … I have experienced trouble with DEAN and ABBY.”

Help arrives

On 8 June 2023, Mr Banning asked Mr Walker for the couple’s email and telephone number, so that he could contact them directly to confirm his upcoming visit. On 9 June 2023, Mr Walker apologised “for events that you as a client have been subjected to … I took the matter up with DEAN recently and the matter nearly turned into a punch up. However all seems well.” Mr Walker complained that Mr Gibson was more experienced as a carpenter but unfamiliar with the hospitality industry, “DEAN has A good heart.” On 13 June 2023, Mr Banning emailed Mr Gibson directly to confirm that he and his guests would have the use of the whole house for the week commencing 2 July 2023.
A few days before Mr Banning’s party arrived at Winter Park, Mr Walker found a four-page handwritten letter from Ms May in the granny flat and thought it had been put under his door. In short, Ms May sought clarification of the couple’s management role at Winter Park, given Mr Walker’s dissatisfaction with some of the changes made, in particular, changing the curtains. Ms May emphasised the efforts made by Mr Gibson to improve the property but:

“we have started to think maybe you are going back on your words … Dean is feeling cheated now after all his efforts to improve Winter Park, and pushing himself to finish and be ready before July. It’s been extremely hard too prove to you we are for real and getting advertising on Airbnb is not easy at all … We can be here with bookings for next year and with no documents stating our role, you or anyone can simply tell us to f. off … other reason being to do taxes we need abn and without some sort of lease or plan signed by you then we don’t stand a chance to obtain an abn. If you don’t want to do a 30 year lease do it for 1 year, 5 year doesn’t matter and it’s only management role, Neil Walker remains sole owner of property. … Dean wants to know that we are going to be okay and not randomly after all his done and put into that someone can tell us to f off and then what? …we need to talk more and be more clear … this is our life we are not just on holiday … we want to have this with you, and were not playing games its full on.”

Obviously enough, if the 30-year lease was executed as the plaintiffs contend, there would be no need for such a note.
On 1 July 2023, the first guests stayed at Winter Park. Ms May emailed Mr Walker to confirm the arrangements for when the guests vacated on 2 July 2023 and before Mr Banning and his party arrived. Ms May also asked Mr Walker to help the guests, who did not have water in the kitchen. Mr Walker replied that he had fixed the problem and spoken to the guests. Ms May confirmed that she and Mr Gibson would be there early on 2 July 2023 to prepare the house for the Banning party. Mr Walker said the only payment he ever received from the plaintiffs was $1,000 in cash, lodged in his door, being part of the first guests’ payment.
On 2 July 2023, Mr Walker emailed Mr Banning and asked him to come as quickly as he could, “the house is a mess and DEAN did not show up.” Later that day, Ms May emailed Mr Banning, welcoming him to Winter Park and detailing earlier problems “we had our first customers yesterday and they left this morning and we drove from Sydney to WinterPark … but got held up and didn’t arrive at Winter Park till late around lunchtime and Sir Neil was not happy, we came to freshen up and tidy up … and we found that Neil had started cleaning and tidying up and he was not at all happy, and for the first time since we have been there Neil actually made me cry, Sir Neil spoke to me in a way I didn’t deserve … However I tried to help him but he didn’t want us anywhere near the house, Neil invited us in and asked us to do what we have done we have only delivered what he asked us for …” Obviously enough, relations between the plaintiffs and defendant were in decline.
Mr Banning and his party arrived at Winter Park later that day and stayed for six nights. On arrival, Mr Walker rushed to meet Mr Banning and appeared very rattled and was speaking so fast that Mr Banning couldn’t understand him. Mr Walker said he had big problems with Mr Gibson and Ms May, “they have taken over my property and making changes I don’t agree with”.
Mr Banning went into the main house. His first impression was that the house looked better than it had the previous year. Some of the timber in the kitchen was painted white. There were new tiles on the kitchen splashback. There were new curtains in the dining room and new dining room chairs. On closer inspection, however, it appeared to Mr Banning that the improvements have been “done on the cheap”. The kitchen splashback was contact stuck over the tiles. The new curtains looked nicer but lacked insulation, and so were not functional. Mr Walker also showed Mr Banning the excavations for a carpark. Mr Banning was concerned that the works did not seem to have been done correctly, as there was no drainage, no retaining of the soil nor was the work approved by the council. Mr Banning told Mr Walker that the next big rain would wash a lot of the works away.
Not long after Mr Banning’s arrival at Winter Park, Mr Walker handed him the four-page handwritten letter from Ms May. On reading the note, Mr Banning became concerned and asked Mr Walker if he had signed a 30-year lease. Mr Walker said “no of course not I am not stupid.” Mr Walker also said the couple kept hassling him to sign a lease. Mr Walker told Mr Banning about his meeting with Ms Nunan, and that she had gone to the police. He gave Mr Banning a copy of the Perisher offer. Mr Banning decided to meet Ms Nunan to find out what she had seen and done. On 6 July 2023, Ms Nunan met with Mr Banning, following which, Mr Banning also went to the police.

Eviction

On 8 July 2023, Mr Banning sat down with Mr Walker and had a lengthy discussion about Mr Gibson and Ms May. Mr Walker showed Mr Banning the Agreement for Lease of Agricultural or Rural Land: see [97]. Mr Banning prepared a letter of eviction, which he provided to Mr Walker, before heading to Jindabyne to buy Mr Walker a new mobile phone. Mr Walker sent the eviction notice to Ms May by email:

“Unfortunately, I feel that I can no longer have you stay on my property.
As you know, I have been willing to allow you to stay on my property rent free for the last 6 months. This was on the expectation that you would help me manage the property and maximise the income it could generate, especially during the winter SKI season. As you know, for me, as an 83 year old man, the burden of managing my property is something I was hopeful of obtaining some assistance with.
However, over the last 6 months, you have generated one booking, and you paid me $1000. More concerning for me, I have recently found that PERISHER Blue offered to rent my property for $72,000 for 16 weeks for the 2023 winter season. Without any consultation with me, you turned down this offer. At around the same time, you handed me a 30 years lease you wanted me to sign, offering me $40,000 per year, with a first option to purchase my property.
It doesn't seem to me that you have my best interests in mind when managing my property. In fact, I know that Perisher were so concerned they contacted Jindabyne Police. My understanding is that Perisher told the Police they were concerned that you were taking advantage of me.
I appreciate that you have done some work on the property, in return for which you have spent considerable time living on my property rent free for no charge from me. You have also stored a large amount of your personal goods on my property, including a jet ski, tools, building and construction equipment and personal effects, without any rent or charge.
I am happy to arrange a mutually convenient time for you to collect these items from the property, however this does not extend to you staying the night. Please let me know when you would like to return to the property so I can make sure I am present.”

An hour later, Ms May replied that the couple were travelling overnight to Winter Park and would be there by the morning, “AS YOU ARE AWARE WE HAVE THE PROPERTY BOOKED TILL THE END OF THE SEASON.. AS AGREED BY YOU AND HAVING YOUR CONSENT AND YOUR WORD TILL THE END OF THE SEASON.. WE WILL FINALIZE OUR BELINGINGS THEN.” Ms May said the message was in the capital letters because “my phone just had a problem at the time.” More likely, it was intended to convey Ms May’s displeasure. Ms May agreed that she did not refer to the existence of a written lease in this email, “I didn’t, like, feel the need to do it in the email.” I reject this evidence; this email was the perfect occasion to refer to the lease, if it had been executed by the landlord and tenants. Instead, Ms May’s email reflected her understanding that Mr Walker had agreed that the couple could manage Winter Park until the end of the winter ski season.
A longer email from Ms May followed, “… YOU were notified and definitely informed about Perisha as you greeted the lady when she attended your property.” (I note that Ms May did not suggest that she had given a copy of Perisher’s offer to Mr Walker.) Ms May complained that Mr Walker had treated her ill, suggesting that his initial approach to her had impure motives, “But at that time you YOU offered and suggested I help you to BRING WINTERPARK back to life with bed and breakfast and it started well. … you have Used us me and Dean you’ve used Dean to better and increase value to your land and property … Neil you played with our lives and made promises and we believed you and now this?? Just like that?”. Again, no mention of a 30-year lease giving the couple the right to remain at the property notwithstanding the eviction notice. It appears, however, that Ms May and Mr Gibson, did not proceed with their overnight drive to Winter Park.
On 10 July 2023, Ms May emailed Mr Walker to confirm and remind him that guests were arriving that day, “Dean and I will arrive to greet them just before them so we will see you soon.” Mr Walker informed Mr Banning of this development. Mr Banning suggested that a full list of guests and bookings be obtained from Ms May, with dates and how much the guests had paid, so they could discuss the matter and how to deal with it. Mr Walker reported later that day that Ms May had arrived at 11.00 am, requesting that water, electricity and gas be made available to the house. Ms May indicated that more bookings followed.
On 11 July 2023, Mr Banning contacted the police noting, “This is the worst elder abuse I have seen in my 32-year career, and I have seen some elder abuse in my career.” Police attended the property. Mr Walker was not there, but in Canberra attending a medical appointment. On his return, Mr Walker emailed Mr Banning and reported that, after the police left Winter Park “then the tenants turned up expecting guests. SHE came and told me not to turn off power etc as she is putting guests in ALL WINTER when the tenants are here at present with guests.” Nor were the police prepared to take action until the tenants were given a date by which they must vacate the property.

Turning to the invoices, the detail in the invoices is summarised as follows:

Date

Number

Description

Amount

5 June 2023

43

Towards stay Winter Park

$2,100

15 June 2023

53

Cash in hand Mr Walker towards rent at Winter Park

$2,000

2 July 2023

61

First Airbnb – spilt payment from first client Airbnb-cash to Niel

$1,000

29 July 2023

65

Cash payment Mr Walker profit from Airbnb

$2,000

3 August 2023

69

Cash to Mr Walker towards rent + Airbnb

$2,200

The contemporaneous records indicate that the first time that Mr Gibson raised the prospect of making any payment to Mr Walker was on 21 July 2023: see [120]. The first three invoices pre-date this, albeit Mr Walker accepts that he received $1,000 in cash after the first guests stayed at Winter Park. Each invoice appears to have been prepared from the same tax invoice booklet, but the author has taken the trouble to ensure that the tax invoices do not have sequential numbers. Based on these numbers, Mr Gibson apparently issued nine other invoices between the first and second invoices, seven invoices between the second and third invoices to Mr Walker, three invoices between the third and fourth invoices, and three invoices before the last invoice was rendered to Mr Walker. This was in circumstances where Mr Walker maintained that he was then working fulltime at Winter Park, having quit his job at Malibuild.
When cross-examination on these invoices began, Mr Gibson quickly volunteered, “To save you time … these were made up after … when these proceedings started. … These were never given to Mr Walker. … It was just for me.” When this was sought to be explored, however, Mr Gibson retreated, “I’m not sure … where you’re going with that …” and then said that he had written the invoices in his invoice books on the dates noted on the invoice to record cash he had given to Mr Walker. Mr Gibson then became evasive about the details of his invoice book, saying variously that he “sometimes” used the invoice book in his business “more for the … cash, stuff like that”. When asked about the number for each of the invoices, he appeared to suggest that the invoices may have been prepared from different invoice books, where he “had a few … it was just for my records, really. … I had some in the car.” Mr Gibson denied that he used only one book. To explain the invoices with the intervening invoice numbers, Mr Gibson said he had a small maintenance business in Sydney and returned to Sydney once or twice a week. More likely, Mr Gibson prepared the tax invoices for the purposes of exhibiting them to Ms May’s affidavit, to support the existence of the suggested lease agreement and so I find.

Was there a lease?

The plaintiffs no longer want specific performance of a 30-year lease, but seek damages for breach of the lease. Before damages for breach of lease may be awarded, it is necessary to determine whether there was a lease. Whether a contract was formed is to be objectively ascertained; would a reasonable person have understood that from the text of a contractual document, the surrounding circumstances, and the purpose and object of the transaction, that the parties shared a common intention to contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. Where a plaintiff relies upon the defendant’s signature of a written document, “the agreement is proved by proving his signature…”: Toll v Alphapharm at [42], quoting Parker v South Eastern Railway Co (1877) 2 CPD 416 at 421 (per Mellish LJ) (emphasis added).
Whether or not a signature is genuine is a question of fact to be determined having regard to the evidence, both oral and documentary, lay and expert. The Court can make its own comparison of handwriting, albeit that particular attention should be paid to any expert evidence on the issue: Jeans v Cleary [2006] NSWSC 647 at [157] (per Johnson J) citing R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463 at [59]-[64]; Tasoulas v Tasoulas [2018] NSWSC 861 at [30] (per Rein J); Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 at [70]-[71] (per Garling J); Re Application of Sutherland and Arnautovic [2014] NSWSC 821 at [67] (per Kunc J).
Post-contractual conduct is also admissible on the question of whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25]–[26] (per Heydon JA). Subsequent communications may be used by a party as an admission by conduct of the non-existence of a subsisting contract: GC NSW Pty Ltd v Galati [2020] NSWCA 326 at [95] (per Gleeson JA), citing Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 at 9255.
In deciding whether Mr Walker, in fact, executed the lease, it is necessary to look closely at the document itself before considering the evidence of each witness and the expert evidence of Mr Ganas. The answer is fairly apparent from the face of the document. Of particular interest is the final page. The execution section is as follows:

The tenants’ signatures on the right-hand side may be ignored for present purposes. Those signatures were added to the colour photocopy of the lease attached to Mr Gibson’s affidavit, seven months after the copy attached to Ms May’s affidavit. The couple could not explain the appearance of two additional signatures. I can. This was a late attempt by the plaintiffs to add authenticity to the document. It was also an imperfect attempt, where the lease was with two tenants, Ms May and Mr Gibson, but Mr Gibson appears to have signed twice and, on the face of it, witnessed his own signature.
An examination of this final page reveals a pattern, flowing from an error by the person who prepared the form, Ms May. In the portion of the execution page “SIGNED BY THE LANDLORD”, there is no signature for the landlord. In the space for the landlord’s witness, Ms May has written her name where the witness was to sign and signed where the name of the witness was to be written. That is, Ms May has written her name and put her signature in the opposite place to which each should have been. Clearly enough, Ms May was planning on witnessing Mr Walker’s signature as landlord, but his signature is not there.
In the portion of the execution page “SIGNED BY THE TENANT”, the place for the tenants to sign was also left blank, at least on Ms May’s photographs of the lease annexed to her affidavit when these proceedings were commenced in August 2023. In the place for the first tenant’s witness, Ms May has written Mr Gibson’s name where he was to sign. That is, Ms May has repeated her error by writing the witness’ name in the wrong place, presumably causing Mr Gibson to sign in the wrong place. Also clearly enough, Ms May was planning that Mr Gibson would witness her signature as tenant, but she has not signed the document.
The same pattern can be seen in the place for the second tenant’s witness. Ms May has repeated her error by writing the witness’ name “Neil Walker” in the wrong place. The remaining place – intended by Ms May to be where Mr Walker would sign but where, according to the form at least, his name should have been written – remains blank. That is, Ms May was planning that Mr Walker would witness Mr Gibson’s signature as tenant, but neither Mr Gibson nor Mr Walker signed the document in either capacity.
That is, an examination of the execution page reveals that Ms May prepared the Residential Tenancy Agreement in anticipation of Mr Walker’s signature as landlord in the top portion “SIGNED BY THE LANDLORD”, but he did not sign the document. Ms May also prepared the lower portion “SIGNED BY THE TENANT”, with a view to Mr Walker signing as a witness for Mr Gibson, but he did not sign as a witness either. Nor did the tenants sign the execution page as tenants, as opposed to pre-exemptive witnesses. This is because, like earlier drafts of the proposed lease, Mr Walker did not execute the contract. As much was observed by the police when Mr Gibson showed them the lease on 19 August 2023: see [137].
Turning to the witnesses’ evidence, Ms May deposed “Mr Walker prepared a form of lease and rental bond form in my presence. Most of the handwriting on the document was made by me on his direction. Mr Walker signed the document in my presence and Deans.” In cross-examination, Ms May said “Mr Walker left this form for us, on the coffee table, to fill out. … We found it on the coffee table.” Ms May said they sat down at the same table and completed the document together. When asked if Mr Walker had signed a lease in her presence, Ms May looked away from me during the course of giving her answer and smiled to herself.
Ms May denied that she was eager to have Mr Walker sign a lease, but then immediately said she did want him to sign a lease. Further:

“There was multiple documents handed to Mr Walker, and I got lost. I don't remember how many. Mr Walker enjoyed keeping me busy writing documents, I don't know, drafting up documents, because every time he ‑ I would hand him something, write another one up. So I would, and I would bring it forward to him. And it's like it was a game to him.”

Ms May agreed that, by June 2023, Mr Walker had refused to sign each of the documents presented, containing a lease, “Yes, he’ll have an excuse.” Ms May’s evidence was quite difficult to follow at this point as she became quite evasive, “I’ve gone blank right now.” Ultimately, Ms May said “Mr Walker wrote what he wrote on this lease. … I mean he picked up the pen and he wrote whatever is written there.” After initially saying that Mr Walker wrote his name, Ms May then said “Mr Walker signed this document the way he’s done it here. Signed, wrote, I don’t know. He put the pen to the paper and he did this.” Ms May then became non-responsive such that I took a short adjournment.
Mr Gibson initially said that Mr Walker came into the main house and they sat around the dining table. Mr Walker provided a blank Residential Tenancy Agreement and gave instructions as to how the form was to be completed. Ms May handwrote these details onto the form. This took about an hour. The couple both signed and wrote their names. Mr Gibson saw Mr Walker write his name on the Residential Tenancy Agreement, albeit Mr Gibson then thought that Mr Walker had signed the document. Mr Gibson signed the document as a witness. In cross-examination, Mr Gibson said he found the blank form sitting on the coffee table. Further, a couple of days before 6 June 2023, Mr Gibson asked Mr Walker about the document, asking whether he had left the lease on the coffee table. This conversation was not in Mr Gibson’s affidavits, “There’s a lot of content I may have left out.” Mr Gibson maintained that Mr Walker “put his name to it.”
Mr Walker denies writing his name or signing the document. He recognises the Residential Tenancy Agreement, as he had some of these blank forms in the house, but never provided the document to the couple nor asked or authorised either of them to prepare it. He did not agree to a 30-year lease. Mr Walker said, that day, he had in fact plucked up the courage to speak to the couple about works they were undertaking without his consent or approval. The discussion turned into an argument. Mr Walker also spoke to the couple about Mr Banning’s booking and the discussion resulted in an outburst from Mr Gibson, raising his voice and telling him that he needed to sign the lease. (I note that this is consistent with the contemporaneous emails: see [104]-[105].) Ms May was also hostile to him. Nonetheless, Mr Walker did not sign any lease. The first time he became aware of the alleged lease was when served with these proceedings. While Mr Walker did want Winter Park to progress, it was into a major development “but that’s not Dean and Abby”. Mr Walker was absolutely emphatic in cross-examination on this topic, as opposed to the material changes in the plaintiffs’ descriptions as to how the lease came to be signed by Mr Walker. I prefer Mr Walker’s evidence on this subject.
Turning to the expert evidence, Mr Ganas opined that the written name “Neil Walker” bore no “pictorial or feature similarities” with samples of Mr Walker’s signature or handwritten name. The expert suggested three possibilities: either Mr Walker wrote his name as a “disguised entry” that is, pretending that he had not written the words; the signature was genuine but not represented in the range of variations exhibited in the samples; or the entry was not written by Mr Walker. Mr Ganas considered that the evidence did not support one of these alternatives over the others and he was unable to offer an opinion on the authorship of the questioned entry.
I do not have the same hesitation. The point in time at which Mr Walker is said to have finally acceded to the couple’s request for a long-term lease is the least likely time for him to have done so, where he has contacted Mr Banning on 4 May 2023, raising concerns about the plaintiffs and discussed contacting the police. Mr Walker took the trouble to visit Ms Nunan in Jindabyne, when he appeared physically affected by the situation in which he found himself, shaken and pale, and saying the couple were trying to take his property. His presentation was such that Ms Nunan contacted the police. In the days which followed, Mr Walker withstood the couple’s presentation of the “Agreement to Lease Agricultural or Rural Land” on 6 May 2023. On the morning of 7 June 2023, Mr Walker contacted Mr Banning again, expressing his concerns about the plaintiffs. That evening, at the end of a day in which the document was said to have been signed by him, Mr Walker contacted Mr Banning in terms which did not suggest agreement with the plaintiffs, but conflict: see [104], [105].
Further, the written name “Neil Walker” bears no similarity to any of Mr Walker’s handwriting in evidence. The writing is, however, similar to the names of Ms May and Mr Gibson written above it. Having regard to the pattern described earlier, I conclude that it is Ms May’s handwriting. It was never intended that the written name “Neil Walker” was anything other his name, in preparation for his signature, which was not forthcoming. In circumstances where Ms May must have known that she wrote Mr Walker’s name herself, her discomfort when pressed in cross-examination on this subject makes sense.
Finally, the plaintiffs’ subsequent communications are inconsistent with the existence of a signed lease: see [106], [113], [114], [120], [124], [130]. The defendant’s subsequent communications are consistent with a suspicion that the plaintiffs had taken a Residential Tenancy Agreement form to prepare a lease, together with the belief that any such lease would be invalid given the age of the form and the legislation referred to in it. Mr Walker’s subsequent communications also indicate that the plaintiffs did not even show him the document on 7 June 2023 but, as he said, he first saw it when he became aware of the proceedings. The document relied on by the plaintiffs was not signed by the defendant, nor otherwise agreed to. As there was no lease, the claim for damages for breach of lease fails.

Were representations made?

In the event that there was no lease, then the plaintiffs sought compensation, either for detriment suffered as a consequence of representations made by Mr Walker giving rise to an estoppel, or losses suffered as a consequence of misleading and deceptive representations contrary to the Australian Consumer Law. For each cause of action, it is necessary to consider whether the alleged representations were, in fact, made.
In equity, a representation which “engenders the expectation of the party asserting an estoppel must possess some level of clarity”: Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 at [63]. Ball J there relied on the formulation of Hoffman LJ in Walton v Walton [1994] CA Transcript No 479, “The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made”: Wantagong at [63].
Under the Australian Consumer Law, a representation may be oral, in writing or be implied from words or conduct: Given v Pryor (1979) 24 ALR 442 at 446. The question is whether the representation would have been conveyed to a reasonable person in the plaintiffs’ position, viewing the defendant’s conduct as a whole and in context: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 (per Gibbs CJ); Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [109]. Where the representation was oral, “it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases … the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition”: Watson v Foxman (1995) 49 NSWLR 315 at 318 (McClelland CJ in Eq).
The same representations were relied on in respect of both claims. The representations pleaded are not easy to follow, where the statement of claim contains cross-referencing errors. Allowing for this, the defendant is said to have made representations, both oral and in writing, essentially as recorded in:

the handwritten note prepared by Ms May on 23 February 2023;

Mr Walker’s handwritten note dated 3 March 2023;

oral representations said to have been made by Mr Walker on declining to sign the Commercial Lease Agreement dated 10 April 2023, being, essentially, as per Ms May’s handwritten note of 23 February 2023; and

the Residential Tenancy Agreement of 7 June 2023.

Relying on these representations, the plaintiffs contend that they believed that they had a valid 30-year lease.
The fourth suggested representation can be put to one side immediately. I have found that the Residential Tenancy Agreement dated 7 June 2023 was not executed by Mr Walker nor even shown to him at the time. No representations arose from this unexecuted, undisclosed document.
As for Ms May’s handwritten note on 23 February 2023, Mr Gibson said that Mr Walker simply took the note away and said he would think about it.
As for Mr Walker’s handwritten note dated 3 March 2023, this does not give rise to a representation that the plaintiffs had a lease of Winter Park for 30 years, where there is no mention of lease, and certainly not a 30-year lease. This note was, however, a clear rejection of the couple’s request for such a lease in Ms May’s handwritten note on 23 February 2023.
The third alleged representation has not been established. I am satisfied that the unsigned Commercial Lease Agreement dated 10 April 2023 was brought into existence by the plaintiffs the day before these proceedings were commenced and did not form part of their dealings with Mr Walker. As such, any assurances he gave in declining to execute this document simply cannot have been made. Ms May and Mr Gibson’s evidence in respect of this document was, in fairness to them, likely a description of the conversations with Mr Walker after giving him the “Agreement to Lease of Agricultural or Rural Land” on 6 May 2023. Mr Gibson said that Mr Walker did not refuse to sign the document, nor sign it, “It was never spoken about”. Mr Gibson acknowledged that Mr Walker never said he agreed with the “Agreement to Lease of Agricultural or Rural Land”, “Just didn’t mention it, no”.
Three draft agreements prepared by the couple and given to Mr Walker for his consideration disappeared. A reasonable person in the couple’s position would have recognised that Mr Walker was unwilling to agree to such a (ridiculous) proposal, effectively giving his land to people he had just met on most uncertain terms and for a paltry return. I am not satisfied that the alleged representation was made.

It is thus not necessary to consider whether the couple relied on such representations to their detriment, nor whether it would be unconscionable for Mr Walker to go back on any representation, nor what compensation should be awarded. If I am wrong about this, then it is difficult to see what detriment or loss was suffered, where the couple enjoyed rent-free accommodation at Winter Park for months, expended few funds themselves (see below) but took bookings for some $1,900 per night. The Booking.com records indicate that Mr Gibson collected some $20,000. Apart from $1,000 given to Mr Walker, the couple kept the money.

Quantum meruit

Finally, the plaintiffs seek quantum meruit for work done on the property, in the event that there was no lease. In that event, “it is the very fact that there is no genuine agreement … that provides the occasion for (and part of the circumstances giving rise to) the imposition by the law of the obligation to make restitution”: Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 at 529 (per French CJ, Crennan and Kiefel JJ); Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 227 (per Mason and Wilson JJ).
In order to establish a quantum meruit claim, it is necessary to prove that the defendant has received a benefit, the benefit was obtained at the plaintiff’s expense; and, there is an element of recognised injustice that demonstrates that it would be unjust for the defendant to fail to make restitution: Hegarty v Keogh (No 2) [2023] SASCA 30 at [183] (per Livesey P, Doyle and Bleby JJA). Whether the failure to make restitution would be unjust is not determined by a subjective evaluation of what is unfair or unconscionable; there must be some qualifying or vitiating factor falling into some particular category which renders the retention of the benefit unjust: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [150] (per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
Mr Gibson said he paid $400 for the excavator to be brought to Winter Park on a semi-trailer float. As earlier mentioned, Mr Gibson cleaned the gutters and stormwater drains in February 2023. Mr Gibson said he also undertook the scraping of roads, laying gravel and ancillary works. As to the value of his labour, Mr Gibson relied on an earlier invoice to Malibuild, showing that his daily rate was $555. After the eviction notice in July 2023, Mr Gibson said he stopped the works that were in progress at Winter Park as he did not wish to invest further time, effort and money until his right to occupy and manage Winter Park was resolved.
Mr Gibson purchased hardware, presumably related to work being undertaken at Winter Park: see [82]. On 4 May 2023, Mr Gibson purchased materials from a hardware store in Cooma, totalling $162.71. On 22 May 2023, Mr Gibson bought more hardware supplies in Cooma for $83.93. Mr Gibson also bought some tools, but these do not appear to be specific to Winter Park and can presumably continue to be used by Mr Gibson on other jobs. On 1 March 2023, Mr Gibson bought a screw gun tool for $385. On 2 July 2023, Mr Gibson purchased a chainsaw from a hardware store in Fyshwick for $339. On 8 June 2023, Ms May placed an order for furniture at Amart in Fyshwick totalling $610. These items appear to have been used in the ski lodge in preparation for the arrival of the first guests.
Mr Walker does not accept that the plaintiffs’ efforts were of value, as opposed to inflicted property damage. The bedroom was partially painted with white paint, but with no undercoat or binding agent, onto timber walls which does not suit the style of the house, being a sparse alpine. He described it as a “damn disgrace” which would take a further year’s work to remove the paint. There are new blinds and bedding. The existing curtains in the living room had been removed and replaced by inferior curtains, poorly hung. A bunk bed has been cut in half and painted, for use as two single beds. There is a new kettle and air fryer in the kitchen. The outside of the kitchen cupboards has been painted, badly. Contact has been applied to the kitchen tiles but is now coming away. There are 20 new chairs and chair cushions in the dining room and some decorative items. The carpet in the living room has been burnt. The heater flue in the living room has been painted white, which may be a fire safety hazard. An internal door has been removed and replaced by a heavier door with a heavy-duty lock. Foam has been used to fill a gap between a high wall and the timber roof, which is an eyesore. There is a new television, small coffee table and sofa covers in the living room. Security cameras have been installed and the external timber re-stained. A birch tree has been damaged in the process. Steps outside the kitchen are also incomplete and poorly constructed. The electric pump and generator which Mr Gibson purchased and installed have been removed such that the water bore now no longer operates.
Mr Walker obtained a report from structural engineer, Geoff Bowland, in respect of the carparking area. Mr Bowland concluded that the works had been completed to a “very poor standard and require significant rectification works to ensure compliance for both structural and safety purposes”. The excavated wall is starting to collapse, even without cars parked on the area. It will cost some $130,000 just to make the area safe by restricting access to prevent injury to people or environmental damage until further work is undertaken to make the carpark functional. Safety fencing is needed to protect people from falling over the steep drop created, and to stabilise the steep batters.
I accept that the plaintiffs did work at Winter Park. Mr Gibson, with the assistance of Mr Condoleon, undertook the excavation and road work earlier described. The plaintiffs also improved the visual presentation of the interior decor. The work does appear to have been done ‘on the cheap’, having regard to Mr Bowland’s report and the observations of Mr Banning and Mr Walker. The plaintiffs spent little. It does also appear that the excavation work may have caused property damage, such that the cost of rectifying the damage exceeds any benefit received by Mr Walker from the plaintiffs’ labours.
Nor is there an element of injustice that demonstrates that it would be unjust for Mr Walker to fail to make restitution for whatever benefit he has received, where the work was done, initially, as payment in kind for accommodation at Winter Park and, subsequently, under a management agreement which obliged the plaintiffs to maintain the property. This claim also fails.

Orders

For these reasons, I make the following orders:

Dismiss the Summons filed on 14 August 2023.

Order the plaintiffs to pay the defendant’s costs of the proceedings.

Parties to notify any errors or omissions within seven days.

Grant liberty to the defendant to apply on two days’ notice in the event that he seeks a special costs order, a gross lump sum or compensation from the plaintiffs in accordance with their usual undertaking as to damages given to the Court on 17 August 2023.

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Decision last updated: 27 May 2024

Medium Neutral Citation:	May v Walker [2024] NSWSC 612
Hearing dates:	6 – 9 May 2024, further evidence 16 May 2024.
Date of orders:	27 May 2024
Decision date:	27 May 2024
Jurisdiction:	Equity - Expedition List
Before:	Rees J
Decision:	Proceedings dismissed with costs.
Catchwords:	CONTRACT – 82-year old bachelor owns land near Thredbo with ski lodge – befriended by couple – offers rent-free accommodation in return for work on property – couple press for 99-year lease, then 30 + 30 year lease, then 30-year lease – owner agrees couple can manage the ski lodge – couple apply pressure – bachelor seeks help – police evict couple – couple assert 30-year lease – whether a contract – principles at [159]-[160] – owner did not sign lease – couple falsify multiple documents in support of claim – rogues. REPRESENTATION – whether owner represented that couple had 30-year lease – estoppel – misleading and deceptive conduct – principles at [177]-[178] – reasonable person in couple’s position would have recognised that owner unwilling to agree to (ridiculous) proposal, effectively giving his land to people he had just met on uncertain terms and for paltry return. QUANTUM MERUIT – principles at [187]-[188] –plaintiffs did excavation and redecorated ski lodge – work poorly executed – property damage – benefit not established – no injustice where work in return for accommodation or management of ski lodge.
Legislation Cited:	Australian Consumer Law Residential Tenancies Act 2010 (NSW) ss 18, 236
Cases Cited:	Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 GC NSW Pty Ltd v Galati [2020] NSWCA 326 Given v Pryor (1979) 24 ALR 442 Hegarty v Keogh (No 2) [2023] SASCA 30 Jeans v Cleary [2006] NSWSC 647 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 May v Walker [2023] NSWSC 1628 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Parker v South Eastern Railway Co (1877) 2 CPD 416 Pavey&MatthewsPtyLtdv Paul (1987) 162 CLR 221 R v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463 Re Application of Sutherland and Arnautovic [2014] NSWSC 821 Tasoulas v Tasoulas [2018] NSWSC 861 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Abby May (First Plaintiff) Dean Gibson (Second Plaintiff) Neil Walker (Defendant)
Representation:	Counsel: Mr J Pokoney (Defendant) Plaintiffs (In person) Solicitors: Dentons (Defendant)
File Number(s):	2023/258230

Date	Number	Description	Amount
5 June 2023	43	Towards stay Winter Park	$2,100
15 June 2023	53	Cash in hand Mr Walker towards rent at Winter Park	$2,000
2 July 2023	61	First Airbnb – spilt payment from first client Airbnb-cash to Niel	$1,000
29 July 2023	65	Cash payment Mr Walker profit from Airbnb	$2,000
3 August 2023	69	Cash to Mr Walker towards rent + Airbnb	$2,200