Norris v Friend

[2022] NSWSC 1416

Supreme Court

New South Wales

Medium Neutral Citation:

Norris v Friend [2022] NSWSC 1416

Hearing dates:

8-9 August and 5 October 2022

Date of orders:

19 October 2022

Decision date:

19 October 2022

Jurisdiction:

Equity

Before:

Darke J

Decision:

Further Amended Statement of Claim is dismissed with costs.

Catchwords:

REAL PROPERTY – transfer of land pursuant to intergenerational transfer – whether transfer was conditional on defendant transferee permitting plaintiff transferor to live on the land and farm it for the rest of the plaintiff’s life – whether an estoppel arises from conversations between plaintiff and defendant before transfer – whether transfer effected for the purposes of a joint farming endeavour – factual bases of plaintiff’s claims held not to be established

Legislation Cited:

Conveyancing Act 1919 (NSW), s 23C, s 54A

Duties Act 1997 (NSW) s 274

Limitation Act 1969 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3)

Category:

Principal judgment

Parties:

Colin Joseph Patrick Norris (Plaintiff)
Paul Martin Friend (Defendant)

Representation:

Counsel:
Ms P Lane with Dr A Sapienza (Plaintiff)
Mr J A Trebeck (Defendant)

Solicitors:
Legal Aid Commission of NSW (Plaintiff)
A J & Associates Lawyers (Defendant)

File Number(s):

2021/909

Publication restriction:

None

Judgment

Introduction

1. These proceedings concern three parcels of rural land located on the Newell Highway, Trewilga. The title references for the parcels of land are Folio Identifiers 13/755113, 1/254166 and 15/755113. The first two parcels comprise approximately 284 acres of agricultural land, and include a residence and a pig farrowing shed. Those parcels are together referred to in the pleadings as “Oak Valley”. By about 1998, the plaintiff, Colin Norris, had become the owner of the three parcels. The land had previously been owned by his father, Joseph Norris. The plaintiff lived in the residence on Oak Valley and he grew crops and ran pigs there.

2. The three parcels of land were transferred by the plaintiff to the defendant, Paul Friend, by Transfer AB512148. The defendant is the plaintiff’s nephew. The Transfer is dated 13 September 2004. It was registered on 28 May 2005. At that time, a mortgage (3928920) over the first two parcels in favour of Westpac Banking Corporation (“Westpac”) was discharged, and a new mortgage (AB512149) in favour of Westpac was granted by the defendant over all three parcels. In 2010 the ownership of parcel 15/755113 was transferred into the names of the defendant and his then wife, Melainie Friend. In 2012, the Westpac mortgage was discharged. A new mortgage (AH260349) in favour of Australia and New Zealand Banking Group Ltd (“ANZ”) was granted over parcels 13/755113 and 1/254166. The defendant no longer has any interest in parcel 15/755113. He disposed of his interest in 2015.

3. The plaintiff claims that the defendant undertook to take the transfer of the land subject to an arrangement whereby the defendant agreed that he would permit the plaintiff to remain in possession of the land and farm it for his life.

4. The plaintiff in fact remained in possession of at least the two Oak Valley parcels, and until about late 2020 undertook farming there. However, any entitlement of the plaintiff to do so has been the subject of contention between the parties since about 2009, when their relationship effectively broke down.

5. The plaintiff claims that he has an entitlement to equitable relief against the defendant on three bases, namely:

1. that the transfer was a conditional gift, the condition being that the plaintiff would retain a life interest in the land that would allow him to live on and farm the land for his lifetime;

2. that by reason of representations made by the defendant that the plaintiff could live on the land and farm it for his lifetime, and the plaintiff’s reliance upon the representations, the defendant is estopped from denying the existence of a life interest in favour of the plaintiff; and

3. that a trust arises or should be imposed in favour of the plaintiff in circumstances where the alleged arrangement, and a farming business, were jointly pursued by the plaintiff and the defendant for a period but has since broken down, with the result that it would be against conscience for the defendant to assert title to the land without recognising the plaintiff’s claim to recover his contributions to the joint enterprise.

6. The plaintiff’s claims are denied by the defendant. He denies the existence of any agreement with the plaintiff to allow the plaintiff to reside on the property for his lifetime. The defendant also denies any entitlement of the plaintiff to continue farming on the property for his lifetime. In addition, the defendant raises defences under ss 23C and 54A of the Conveyancing Act 1919 (NSW), as well as laches and defences under the Limitation Act 1969 (NSW).

7. In the plaintiff’s case, three affidavits of the plaintiff were read, namely, affidavits dated 18 March 2021, 10 June 2021 and 14 July 2022. Affidavits of Leanne Tremain (16 February 2021) and Neil Unger (16 February 2021) were also read. Mr Unger, who was required for cross-examination, was ultimately not called, so no use can be made of his affidavit (see Uniform Civil Procedure Rules 2005 (NSW) r 35.2(3)). Many parts of the affidavits were not read or rejected as inadmissible. Only the plaintiff was cross-examined.

8. In the defendant’s case, three affidavits of the defendant were read, namely, affidavits dated 14 February 2021, 9 May 2021 and 28 July 2022. Again, many parts of the affidavits were not read or rejected as inadmissible. The defendant was also cross-examined.

Summary of salient evidence

9. The plaintiff was born in 1955. He began farming on the Oak Valley property (which is about 10km from Peak Hill) in about 1981. The property was at that time owned by his father, Joseph Norris. In about 1989, the plaintiff built a house on the property. He has lived in that house ever since.

10. In about 1998, the plaintiff became the owner of the three parcels of land the subject of these proceedings. The plaintiff borrowed money from Westpac at that time in order to build a pig farrowing shed on the land. Westpac took a mortgage (3928920) over the two parcels that comprise Oak Valley.

11. By about 2002, the plaintiff was operating a piggery on Oak Valley with approximately 350 pigs. He also grew wheat and barley on the farm, with much of the crop being used as feed for the pigs.

12. The defendant was born in 1971. In 2000, he was living in Dubbo and running a plumbing business. He deposed that in or around 2000/2001, he started helping the plaintiff on the Oak Valley farm, doing general farm duties and helping to improve it. In 2002, the defendant bought a house in Peak Hill and moved there with his wife, Melainie Friend, and child. He deposed that he did that so that he could do work on the farm and at the piggery as well as continue to operate his plumbing business.

13. The plaintiff deposed that he first started talking to the defendant in around 2001 about transferring the farm to him. The plaintiff deposed that he decided he wanted to do that as he had no children of his own and wanted to help the defendant financially. The plaintiff deposed, that on at least two occasions, he had a conversation with the defendant in which he said to him:

You have a young family, and you are struggling financially. I want to give you the farm to help you, but it is a condition that I be able to stay on the farm for as long as I like and keep farming.

The plaintiff deposed that in these conversations he had referred to the mortgage over the property, and had asked what would happen to it, and the defendant had said:

Colin, I will agree to the transfer and to taking on the debt.

14. The plaintiff deposed that the transfer did not take place until 2004 “as we were both busy and I never got around to doing it and Paul didn’t press me to do so”. The plaintiff deposed that he “also wanted to see how the arrangement we had in place was working before I transferred the farm over”.

15. In that regard, a considerable amount of evidence was adduced concerning the operation of Oak Valley in the period from about 2001 until the transfer was effected in 2005. The plaintiff gave evidence to the effect that he and the defendant formed a farming partnership in that period that not only involved Oak Valley but also extended to share farming on properties owned by third parties. The plaintiff deposed that, in about 2003, he “effectively handed over control of the farm’s finances” to the defendant. The plaintiff deposed that from that time he no longer took the profits from the farming activities, he only made withdrawals to pay for basic living expenses. It appears that in around 2003 the defendant’s wife took charge of the bookkeeping for the farming activities. The defendant deposed that the plaintiff took the profits from the farming activities until 2006, and that he (the defendant) took the profits after 2006.

16. The defendant deposed that, in or around 2003 and 2004, he and the plaintiff started to have conversations about the farm being handed over. He deposed that at some time in 2004 he had a conversation with the plaintiff in which the plaintiff said:

If you want to work on the farm because there’s nothing keeping you, so I’ll transfer the farm over to you so you can stay and work at the farm. You have to take on the debts.

17. The defendant deposed that he and the plaintiff had a further conversation in 2004 as follows:

Mr Norris:   I am still worried about the farm and my debts and my ability to make a go of things. I can’t borrow any more money. I only have 30 sows and I need to increase the stock. If you are to work here on the farm as well, then the number of sows is not sufficient. We would need in excess of 100 sows. This would require building more sheds, more cropping and more labour. I am not prepared to borrow any more money. You will have to take over the debt and you will have to borrow the money to replace machinery and put in money.

We could transfer it into your name by doing an intergenerational transfer of the farm.

Mr Friend:   What’s that?

Mr Norris:   That’s a process which avoids stamp duty and title gets transferred, but you’ll have to go to a bank to get a loan to pay out the debts.

Mr Friend:   I’ll go and get Helby, a Solicitor in Parkes to do the legal work.

18. The defendant deposed that, prior to the signing of the Transfer, he had a discussion with the plaintiff about building a house on the farm in the future. He deposed that in the course of such a discussion he told the plaintiff that, if he (the defendant) did that, he and the plaintiff could not “co-exist”. The defendant further deposed:

During our discussions prior to the transfer, the Plaintiff said to me, “Nan and Pop want to move into town. That’s okay. When you build your house, I will move over there and live on that farm.”

The reference to “that farm” appears to be a reference to a farm about 2km from Oak Valley where the plaintiff’s parents then lived.

19. The defendant deposed that he ultimately did not advance any plans to build a house on Oak Valley.

20. The defendant also deposed:

Before the transfer I recall the plaintiff told me, “My dad is going to leave his properties to me”. The plaintiff’s father, my grandfather, died in 2006 and did in fact leave properties to the plaintiff.

21. A form of Transfer in respect of the three parcels of land that includes the Oak Valley property was executed by the plaintiff as transferor and the defendant as transferee. The Transfer bears the date 13 September 2004, and I infer that it was executed on or around that date. The Transfer was not registered until 28 May 2005. The transfer is stated to be “Pursuant to Intergenerational Transfer”. That is apparently a reference to a mode of transfer that has the benefit of a stamp duty exemption (see s 274 of the Duties Act 1997 (NSW)).

22. The parties give differing accounts concerning the circumstances in which the Transfer was prepared and later executed. However, it is clear that the plaintiff signed the Transfer after having a discussion with a solicitor, Mr Michael Duffy. The plaintiff deposed that Mr Duffy asked him whether he was sure he wanted to transfer the property to the defendant, and he answered “Yes”. The plaintiff deposed that he did not think to protect himself by recording his agreement with the defendant. In cross-examination, the plaintiff said that, before signing the Transfer, Mr Duffy “explained a fair bit to me”. He agreed that before signing the document, he understood it to be an outright or unqualified transfer by which he gave the defendant the title to Oak Valley “holus bolus”. The plaintiff further agreed that he knew that there was nothing in the document which said he had the right to live at Oak Valley for the rest of his life.

23. The plaintiff deposed:

Between 2005 and 2009 all went as planned and there were no issues. I ran the farm and piggery and Paul continued to work full time as a plumber. Paul would help me with jobs at the farm like loading pigs. We spoke on the phone and consulted about decisions that needed to be made.

I continued to pay for expenses using my existing cheque book. I never knew how much money was in the account linked to this cheque book as I didn’t have access to account records. Ion [sic - On] one occasion when I was paying for groceries in Peak Hill my cheque bounced. I rang Paul’s wife Melanie [sic] and told her what had happened and more money was placed into the account. Melanie [sic] used to do all of Paul’s accounts and was good at it.

24. He further deposed that, in about 2007, the piggery at the property had to be shut down due to disease, but that after the disease had been eradicated, he re-stocked the piggery. The plaintiff deposed that from that time he “no longer used the joint account and took all profits myself”.

25. It seems to have been around that time (approximately 2009) that the plaintiff and the defendant had a “bust up”.

26. The plaintiff deposed that after the “bust up” he said to the defendant:

I will give you $1,200 a month to live on the farm. That money must be used to pay the mortgage.

…

Around 8 months after I had started making these payments I said to Paul:

“Will you lease me the place for $1,200, if I get a lease drawn up?”

Paul said:

“Yes”.

I then paid $2,000 to get a lease drawn up and gave it to Paul. Paul refused to sign, he said:

“I will not sign”.

27. The defendant deposed:

In or around March 2012 I approached the Plaintiff about staying on the Farm. I recall the conversation in words to the effect, “I cannot afford to prop the farm up and I need you if you are going to use the farm to pay rent, rates and water or I have to sell the place.” The Plaintiff said words to the effect, “I agree to pay the rates and water and $1,200 per month for the mortgage.

In or around May 2012 the plaintiff stopped paying rent of $1,200 per month and ceased paying Council Rates and Water Rates.

28. The defendant further deposed:

Around about 2010 I approached the Plaintiff and said to him, “You’ll need to pay rent on the place. The mortgage is $1,200.00 per month, that’s the rent I want”. He said, “Okay, I’ll pay it” and he paid the rent for 8 or 9 months and then he stopped paying…

29. On 23 January 2013, Callachor & Helby, solicitors, acting for the defendant, sent a letter to the plaintiff in the following terms:

We have been instructed by Mr Friend to write to you in respect of the previously existing farming arrangement. Due to a breakdown in that arrangement Mr Friend wishes to advise that the previously existing farming arrangement is at an end. You are not to undertake any further farming activities on the land.

Mr Friend indicates that you may continue to reside in the house which you presently occupy and you may continue with your pig farming activities. The only restriction on the activities with the pigs is that you may not spread effluent and/or pig waste on any of the farmland outside the area where you presently have your sheds. In the event that you do not comply with this notice Mr Friend will consider removing you entirely from the house and land.

There is no evidence of any reply to that letter.

30. On 18 March 2013, Callachor & Helby sent another letter to the plaintiff. This letter is in the following terms:

We refer to our earlier letter with you and our subsequent discussion. Mr Friend has indicated that he is prepared to allow you to continue farming if you make up the arrears of rent which at this stage he says are 10 months at $1,200.00 per month. Thereafter you may continue farming the place on payment of $1,200.00 per month plus shire rates and water.

Should you decide not to farm the property than [sic] Mr Friend has indicated you may live on the property but must cease farming activities. If this is agreeable to you than [sic] he will happily enter into a written lease with you setting out the above terms. We look forward to hearing from you.

There is no evidence of any reply to that letter.

31. However, it seems that the plaintiff thereafter continued to farm the property and refused to pay the $1,200 per month, or the Council rates and water rates, as sought by the defendant. The plaintiff deposed that he “was under no legal obligations to pay any rent etc because of his refusal to sign the agreement”. It is not entirely clear what “agreement” the plaintiff is there referring to, but it seems likely to be a reference to the lease the plaintiff claims the defendant refused to sign. I note that the defendant deposed that in 2013 the plaintiff approached him “and asked to lease the property for $1,200.00 a month”. The defendant says he agreed to that, and that the plaintiff sent a lease to him, “but I was not happy with the proposed Lease because there were no conditions in it.”

32. There is evidence that, in April 2017, a lease was sent by the plaintiff to the defendant. The lease was prepared by a solicitor, Mr Luke Clarke. Mr Clarke’s letter to the defendant, dated 12 April 2017, was in the following terms:

I act for Colin Norris.

I enclose draft lease prepared in accordance with his instructions. I understand that your farm is mortgaged and it is likely the lease will require mortgagee consent.

You should read the terms of the lease carefully before signing and also consult your bank before execution of the lease.

You are entitled to independent legal advice.

33. The enclosed lease concerned the two parcels that comprise Oak Valley. The defendant was named as lessor and the plaintiff was named as lessee. The lease provided for a term of 10 years, commencing on 31 March 2016 and terminating on 10 March 2026. There was no option to renew contained within the lease. The lease provided for a yearly rent of $8,400, payable by monthly instalments of $700. The lease further provided for the lessee to pay all land taxes as well as certain Council rates and charges, water charges and insurance. The lease provided for a permitted use described as “grazing, farming and intensive agriculture (piggery)”.

34. The defendant deposed that he ceased making payments on the mortgage over the property in about early 2019 and that he made a decision at about that time to sell the farm. The defendant deposed that, in about November 2020, he entered into a contract for the sale of Oak Valley to Mr Michael Dunn for a price of $437,500. The defendant deposed that a deposit (presumably of $43,750) was taken. However, the contract has not settled. By that time, the plaintiff had lodged a caveat over the title to parcel 13/755113 (caveat AQ488617). The caveat remains on the title.

35. By the end of 2020, Council rates and water rates for the property were respectively in arrears in the amounts of $16,213.13 and $5,378.

36. These proceedings were commenced in January 2021. In May 2022, the mortgagee, ANZ, commenced proceedings against the defendant for possession of Oak Valley. On 8 June 2022, ANZ obtained judgment for possession. However, it seems that a writ of possession has not yet been executed.

Determination

37. The central issue is whether the transfer of the land from the plaintiff to the defendant was subject to the arrangement alleged by the plaintiff, whereby he would be permitted to remain in possession of the land and farm it for the rest of his life. The alleged arrangement underpins each of the claims to equitable relief made by the plaintiff.

38. The alleged arrangement is said to have been made in the course of conversations between the plaintiff and the defendant about the transfer of the land that took place many years ago. The existence of an arrangement in those terms is not corroborated by any documentary evidence at all, let alone any contemporaneous documentary evidence.

39. As acknowledged by counsel for the plaintiff, the case very much turns upon whether the Court accepts the plaintiff’s evidence concerning his conversations with the defendant. It was candidly stated that the plaintiff was a stubborn witness who insisted on telling his side of the story. It was further stated that at times his denials of certain matters could not be believed. It was submitted that, nevertheless, the plaintiff’s evidence on the central issue should be accepted. This submission rested to a considerable degree upon a comparison of the evidence given by the plaintiff and the defendant in relation to the farming operations that were carried out on Oak Valley. It was submitted that the documentary evidence in respect of those operations was consistent with aspects of the plaintiff’s recollection, and inconsistent with aspects of the defendant’s evidence. However, whilst I agree that those matters are relevant to take into account in assessing the reliability of the parties as witnesses, they seem to me to be of minor significance, and somewhat peripheral to the essential subject-matter of the discussions concerning the transfer of the land. The plaintiff’s evidence is not to the effect that the transfer was made upon the basis that any particular mode of farming operation (such as a partnership or a joint venture) would continue, or would come into existence and continue thereafter. Rather, the plaintiff’s evidence is to the effect that the transfer was undertaken on the basis that he would have the right to continue to farm the land for the rest of his life. The farming operations that existed in the period leading up to the transfer form part of the context in which the discussions about the transfer occurred, but they do not comprise the essential subject-matter of those discussions.

40. Ultimately, having considered the totality of the evidence, I have come to the conclusion that the transfer of the land was not subject to the arrangement alleged by the plaintiff. That is to say, I am unable to be satisfied that the plaintiff stipulated, as a condition of the transfer, that he be able to stay on the land and keep farming it for as long as he liked, or that the defendant agreed to accept the transfer subject to such a condition. I have reached that conclusion for several reasons.

41. As already mentioned, the existence of such an arrangement is not corroborated by any documentary evidence. Proof of the arrangement fundamentally rests upon the testimony of the plaintiff, who was endeavouring to recall details of conversations that took place nearly 20 years ago. Testimony of that nature always needs to be carefully scrutinised, as there is a recognised danger not only that recollections of events deteriorate over time, they sometimes become distorted, perhaps unconsciously, by perceived self-interest, particularly in a litigious context. Unfortunately, the manner in which the plaintiff gave his evidence created the impression that his testimony was affected by perceived self-interest. There were numerous occasions where the plaintiff appeared to be more focussed upon giving explanations that he felt should be given than upon giving answers to the particular question asked. Counsels’ concession in that regard was apt.

42. So, too, was the observation that some of the plaintiff’s denials could not be believed. One example was the plaintiff’s initial denial that he received “the dole” in 2007. It is obvious that, between April 2007 and December 2008, Centrelink payments were made into a Westpac cheque account in the plaintiff’s name, and it is clear that the plaintiff was aware of such payments. The plaintiff signed an Activity Agreement in October 2007 in connection with the “Work for the Dole” scheme. The plaintiff’s subsequent statements in evidence that he “never saw” any of the money were unconvincing. Another example is the plaintiff’s denial that in 2006 he still had access to the cheque account. That denial was at odds with other evidence he gave to the effect that he withdrew money from the account from time to time to meet living expenses.

43. The plaintiff also appeared at pains to distance himself from financial statements and taxation returns that had been prepared for him by others. Accepting that he may not have been aware of the details of how the documents were compiled, it seems that at the time the documents were created he had been content for the documents to be prepared for him, and presumably used in relation to his taxation affairs. The plaintiff’s attempts to distance himself from those documents seemed to me to be evasive, and further reason to treat his testimony with caution.

44. The plaintiff’s account of the conversations concerning the transfer also suffers from the fact that it is not supported by the subsequent conduct of the parties. For example, it seems clear that in about 2012 there was a conversation between the plaintiff and the defendant to the effect of that referred to above at [27]. That was accepted by the plaintiff in cross-examination. There was thus a discussion in which the prospect of the defendant selling the property due to financial pressure was raised, and an agreement was reached to the effect that the plaintiff would continue to use the farm and would pay $1,200 per month and meet the rates and water charges. This conversation took place after the 2009 “bust up”, at a time when the plaintiff was using the land and keeping the profits that were derived from his efforts. There is no evidence that the plaintiff made any assertion at that time that he had an existing right to remain on the land and farm it for as long as he liked.

45. The abovementioned agreement seems to have been performed for only a few months before the plaintiff ceased making payments. He gave evidence that he stopped paying because the defendant refused to sign the lease that had been prepared. It is not clear what lease the plaintiff is there referring to. The only lease in evidence is the lease sent to the defendant in 2017. Nevertheless, it is noteworthy that the plaintiff gave a refusal to sign the lease as the reason why he stopped paying, not the existence of a right to remain on the land and farm it for the rest of his life.

46. The breakdown of the 2012 agreement seems to have prompted the defendant to engage solicitors to write to the plaintiff about the situation. The first of those letters, dated 23 January 2013, refers to a breakdown of the previously existing farming arrangement. It is not entirely clear whether that is intended to be a reference to the arrangement that had broken down in 2009, or the short-lived 2012 agreement. However, the letter goes on to state that the plaintiff was not to undertake any further farming activities on the land, but may continue to reside in the house and undertake pig farming, subject to an identified restriction. It was stated that if the plaintiff did not comply with what the defendant wanted, he would consider “removing you [the plaintiff] entirely from the house and land”. The assertion of those rights by the defendant was entirely at odds with the transfer having been made on the basis that the plaintiff could remain in possession and farm the land for the rest of his life. Yet there is no evidence that the plaintiff responded by asserting that he had such rights, or sought to challenge what was being put by the defendant. There was no reply to the letter, although the terms of the second of the letters, dated 18 March 2013, indicates that the plaintiff had discussed the matter with the solicitors. It can be inferred from the language of the second letter that the discussion likely involved the terms upon which the defendant would allow farming to continue. Again, there was no reply to the second letter, and there is no evidence of any assertion by the plaintiff of the rights he now claims in these proceedings. Had the transfer of the land occurred in the manner the plaintiff now says it occurred, it could be expected that he would have asserted those rights in answer to the defendant’s stance in 2013. It would have been a relatively simple matter to engage a solicitor to respond to the letters accordingly. I will add that the plaintiff did not strike me as someone who would be reticent in putting his position forward, if he felt that the defendant was acting contrary to what had been agreed at the time of the transfer.

47. The proffering of the lease (with the assistance of a solicitor) in 2017 is further conduct of the plaintiff that does not support the existence of the condition on the transfer he alleges. Indeed, the terms of the proposed lease are prima facie inconsistent with the existence of such a condition. In cross-examination, the plaintiff (at least initially) accepted that at the end of the lease term he would have no further right to stay on the property. When it was put to him that this was quite different from being able to remain in possession of the property and farm it for the rest of his life, he said that the lease (which was never signed by the defendant) would not mean that “I can’t renegotiate with him again …”.

48. At one point in his cross-examination, the plaintiff asserted (in an answer that was not responsive to the question asked) that it would be absurd to think that he would have transferred the land “without some agreement”. He nonetheless accepted that it was part of the deal that the defendant had to “take the debt” before he got the property. The plaintiff disputed the defendant’s evidence as to the amount of debt that he actually took over, and pointed out that at least some of the debts had been incurred jointly. The evidence is clear, however, that in December 2004 $76,167.27, being the amount owing on a Business Development loan that was in the names of both parties, was repaid by the defendant using funds borrowed under a Business Development loan in his sole name. Further, I accept that in July 2005 the defendant paid $40,000 in reduction of a jointly owed debt of about $58,000 for fertiliser that had been used on the property in 2004. Of course, once registration of the transfer and new mortgage to Westpac occurred in May 2005, any debt secured over the property was entirely the responsibility of the defendant. It is not self-evidently absurd for the plaintiff to have agreed to a transfer on the basis that he would become free of the debts. It is also relevant in this context to note the evidence given by the defendant (referred to above at [18]) concerning the prospect of building a house on the property and the plaintiff moving elsewhere. That evidence of the defendant’s was unchallenged.

49. I have considered the whole of the evidence given by the defendant, and the various criticisms made of it by counsel for the plaintiff. The defendant was shown to have a poor recollection of various matters, particularly in relation to the financial details of the farming operations in the period from about 2002 to 2006. That is not at all surprising, and I note that it seems to be the case that the bookkeeping role throughout much of that period rested not with the defendant, but with his former wife. The defendant’s evidence, insofar as it suggested that, following the transfer, the plaintiff would become an employee, was plainly erroneous. Nevertheless, the plaintiff’s own description of the situation that then existed was to the effect that he no longer took profits from the farming activities on the land, and only made withdrawals to pay for basic living expenses. Given that the plaintiff was living on the property, rent free, such an arrangement bears some similarity to an employment relationship. In these circumstances, I do not think that the defendant’s evidence in this regard significantly undermines the reliability of his testimony. Overall, I formed the impression that he was a satisfactory witness, endeavouring to answer accurately the questions put to him, as far as his recollection of the events would allow. Further, his conduct in 2013 in having the solicitors send letters to the plaintiff is consistent with him having taken the transfer of the land some years earlier without any condition of the nature now alleged by the plaintiff. I accept the defendant’s denials of the existence of any arrangement or agreement of the type alleged by the plaintiff.

Conclusion

50. It follows from the above that the plaintiff’s claims to equitable relief must be rejected. The transfer (which in any event involved the discharge of the existing mortgage, and was thus not truly a gift) was not made subject to the condition alleged. Nor did the defendant, in agreeing to the transfer, make any representation to the effect that the plaintiff could live on the land and farm it for his lifetime. Finally, it is not the case that the defendant acquired his interest in the land on the basis that any joint farming relationship or endeavour would continue, or would come into existence and continue thereafter. The transfer of the land to the defendant was not shown to have been effected so as to enable the carrying on of any joint endeavour, or to serve as the plaintiff’s contribution to such. Whilst both parties may have contemplated that the existing farming arrangements would continue, at least for a time, it cannot be said that the transfer represented a contribution made by the plaintiff to any such joint endeavour. In those circumstances, when the mode of farming operation that had been carried on ceased in about 2009, following the falling-out between the parties, it was not unconscionable for the defendant to assert his interest in the land to the exclusion of the plaintiff. Moreover, the defendant was entitled to thereafter dispose of his interest in parcel 15/755113 free of any equitable obligations to the plaintiff.

51. The plaintiff’s claims to relief must fail because the essential factual underpinning of his case has not been established. It is not necessary to consider the various affirmative defences that were pleaded by the defendant.

52. The Court will order that the Further Amended Statement of Claim be dismissed. The Court will further order that the plaintiff pay the defendant’s costs of the proceedings.

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Decision last updated: 19 October 2022