Perpetual Trustee Company Limited v Corbett

[2018] NSWSC 126

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Trustee Company Limited v Corbett [2018] NSWSC 126

Hearing dates:

25-28 July 2017

Decision date:

16 February 2018

Jurisdiction:

Equity

Before:

Robb J

Decision:

The Court will dismiss the plaintiff’s statement of claim and make appropriate orders in favour of the cross claimants. See pars 191 and 192 of judgment. The parties are directed to bring in short minutes of order to give effect to these reasons.

Catchwords:

ESTOPPEL – Proprietary estoppel – Detrimental reliance – whether actions undertaken were in reliance on deceased’s representations – whether detriment suffered in reliance on representations – whether deceased’s representations were contributing cause to first defendant’s conduct – whether unconscionable to resile from belief induced by deceased’s representations

Cases Cited:

Watson v Foxman (1995) 49 NSWLR 315
Priestley v Priestley [2017] NSWCA 155
Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285
Giumelli v Giumelli (1919) 196 CLR 101
Sidhu v Van Dyke (2014) 251 CLR 505

Category:

Principal judgment

Parties:

Perpetual Trustee Company Limited as Trustee of the Estate of the late Keith William Corbett (plaintiff/cross defendant)

 

John Keith Corbett (first defendant/first cross claimant)

 

Corbett Constructions Pty Ltd (second defendant/second cross claimant)

  Corbett Court Pty Ltd (third defendant/third cross claimant)

Representation:

Counsel: CM Harris SC (plaintiff/cross defendant)
B DeBuse and J Brown (defendants/cross claimants)

  Solicitors: Diamond Conway (plaintiff/cross defendant)
Marsdens Law Group (defendants/cross claimants)

File Number(s):

2014/216557

Publication restriction:

None

Judgment

1. The plaintiff in these proceedings, Perpetual Trustee Company Ltd, the trustee of the estate of the late Keith William Corbett (the Trustee), seeks a declaration that none of the defendants have any interest, legal or equitable, in a property at 240 Picton Road, Maldon, NSW, identified by folio number 1/732582 (the Maldon Property). It also seeks an order that the first defendant, John Keith Corbett, who with no disrespect intended I will refer to as ‘John’, withdraw a caveat lodged over the title to that property, and orders that the defendants vacate the property and pay mesne profits or damages in respect of their occupation of the property since 10 April 2010.

2. John is the son of the late Keith William Corbett (the deceased), who died intestate on 10 April 2010 after falling from a ladder and suffering a subdural haematoma. As will be seen, it is significant that the deceased died unexpectedly, before he had time to make a will that he contemplated that he would make at the time of his death. His wife, Valerie Isobel Corbett, died intestate two years earlier. They were survived by John and his seven siblings: Paul Herbert Corbett, Honora Valerie Corbett, Anne Mary Corbett, Margaret Barbara Corbett, Joseph Edward Corbett, Clare Louise Kristensen (nee Corbett) and Gwen Christine Corbett. With no disrespect intended, I will also refer to each member of the Corbett family by their first names.

3. The Supreme Court of New South Wales granted the Trustee letters of administration in the deceased’s estate on 17 November 2010. During the course of its administration of the deceased’s estate, the Trustee found that the Maldon Property was occupied by John and the second and third defendants, who I will refer to as ‘Corbett Constructions’ and ‘Corbett Court’ respectively.

4. Corbett Constructions Pty Ltd was incorporated on 24 April 1990. John and his wife, Renelle Antoinette Corbett, are its only directors and shareholders. John holds 200,001 shares in the company whilst Renelle holds only one. As its name suggests, the principal business of Corbett Constructions during the time the relevant events occurred was construction, and there are many instances throughout the evidence of Corbett Constructions being engaged to perform work on land owned by the deceased and his companies.

5. Corbett Court Pty Ltd was incorporated in 1993. At the time of its incorporation, John subscribed for 50% of the shares and each of his siblings received a 1/7th interest in the remaining 50%. Accordingly, John received 42 shares and his seven siblings received six shares each. The ASIC Current & Historical Search annexed to Johanna Johnsen’s 23 January 2015 affidavit confirms that each of John’s siblings still own six shares in Corbett Court. However, it states that John and Renelle own 50,042 and 50,000 shares respectively. Originally, John and his parents were appointed to be directors of Corbett Court, but today John and Renelle are the directors of the company. John was appointed on 30 December 1993 and Renelle was appointed on 2 February 2011.

6. John claims that he has a legal and beneficial interest in the Maldon Property as a result of representations made to him by the deceased and his reliance upon those representations. He defended the claim made by the Trustee on that basis, and filed a cross claim in the proceedings seeking a declaration that he is entitled to the whole of the legal and equitable interest in the Maldon Property, and an order that the Trustee pay mesne profits or damages in respect of the rent it has received from the property since 4 October 2012.

7. I have decided that John is entitled to succeed in his claim. This judgment contains the reasons for my decision.

The pleaded case

8. The Trustee filed an amended statement of claim on 22 September 2014. The Trustee was granted letters of administration in the deceased’s estate on 17 November 2010. It found that, although the deceased was the registered proprietor of the Maldon Property, the property was partly occupied by the defendants and the defendants were receiving rental payments from the other occupant. It seeks an order directing John to withdraw the caveat he lodged over the title to the property, a declaration that the defendants do not have any interest in the property, an order directing the defendants to vacate the property, and an order directing the defendants to pay mesne profits or damages. The mesne profits sought are an amount of $202,142 plus a sum of interest in respect of the defendants’ occupation of part of the Maldon Property from the deceased’s death on 10 April 2010, plus $139,178 and interest, being the rent received by Corbett Constructions from tenants of part of the property up to 4 October 2012. From that date, following a demand made by the Trustee, the tenants have paid the rent to the Trustee. The total amount of the claim to the date of the hearing was $450,429.

9. The defendants filed a defence on 28 October 2014. They admitted that the deceased was the registered proprietor of the Maldon Property. They also admitted to occupying the Maldon Property and receiving rent following his death. But they defended the claim by alleging that the deceased had represented to John that he could have the Maldon Property and that John had acted to his detriment in reliance upon the representations made by the deceased.

10. The defendants expressed their claim that the deceased had made certain representations to John and that John had relied upon those representations in the following way:

6.   By way defence to the entire claim, the Defendants say that between 2002 and 2010 the late Keith William Corbett, acting for himself and on behalf of his wife Valerie Corbett, represented to the First Defendant that if he:

(a)    developed the Maldon Property for the purpose of providing a place where the First and Second Defendants would be able to organise and undertake development work inter alia on behalf of Keith and Valerie Corbett;

(b)   worked jointly with the Late Keith William Corbett in developing his assets and those owned by companies under his control in particular at Menangle St, Menangle St West, Coull St, Progress St, Marion St, Rita St and Bronzewing St ("Estate Properties"); and

(c)   provided assistance to the Late Keith William Corbett in carrying out the development and improvement of the Estate Properties;

that the First Defendant was entitled to the legal and beneficial interest in the Maldon Property (the "Maldon Representation"),

Particulars

(a)    The Maldon Representations were express and implied. To [the] extent they were express, they were contained in conversations between the Late Keith William Corbett and the First Defendant. To the extent they were implied, they were implied through the conduct of the dealings between the Late Keith William Corbett and the First Defendant.

7.   Acting upon the Maldon Representation, and doing so with the knowledge of the Late Keith William Corbett, the First Defendant caused a number of works to be carried out and/or contributions to be made to the Maldon Property, in that he:

(a) Developed the Maldon Property;

Particulars

(i)    The First Defendant moved to the Maldon Property a building owned by the Third Defendant;

(ii)    The First Defendant caused materials from buildings owned by the Third Defendant to be used to construct a building on the Maldon Property presently being leased by Roadworx Surfacing Pty Ltd (the "Shed");

(iii)    The First Defendant renovated buildings on the Maldon Property or otherwise caused the Second Defendant to renovate the buildings on the Maldon Property; and

(iv)    The First Defendant caused the Second Defendant to construct the entrance to the Maldon Property in about 2006.

(b)   Caused the Second Defendant, Third Defendant, K&V Corbett Pty Ltd, Menangle Pty Ltd and Picton Tavern Pty Ltd to change their registered offices to the Maldon Property. Until his passing in 2010 the Late Keith Corbett was a director of the Third Defendant, K&V Corbett Pty Ltd, Menangle Pty Ltd and Picton Tavern Pty Ltd.

(c)   Caused the Second Defendant to enter into a lease with Ellis Profiling Pty Ltd and subsequently Roadworx Surfacing Pty Ltd for the rent of the Shed.

(d)   Caused the Second Defendant to pay for the outgoings and maintenance of the Shed.

(the "Contributions")

(e)   carried out work for no reward and or at cost for the development and improvement of the premises and houses located on the Estate Properties.

(f)   undertook other work at the request of the Late Keith William Corbett on behalf of himself and Valerie Corbett and /or companies in which they held an interest.

(the "Work")

11. Although the defendants did not specify the precise nature of their claim, the Trustee characterised it as one of proprietary estoppel. The nature of the defendants’ pleadings and the manner in which they ran their case confirm this characterisation.

12. The defendants also made two alternative claims. The first was that the Trustee holds its interest in the Maldon Property on constructive trust for John in the amount or in a proportion reflective of the Contributions (as defined above) made by him or by Corbett Court or Corbett Constructions at his direction. The second was that John and/or Corbett Court and Corbett Constructions are entitled to equitable compensation reflective of the Contributions that they made to the Maldon Property.

13. The defendants made each of their claims in a cross claim filed on 28 October 2014. In the cross claim, they sought a declaration that John is entitled to the whole of the legal and equitable interest in the Maldon Property, or in the alternative, a declaration that any one of the defendants has a constructive trust over the Maldon Property, or further in the alternative, that any one of the defendants is entitled to equitable compensation. The defendants also sought an order that the Trustee pay mesne profits or damages in respect of the rent it received from the Maldon Property following 4 October 2012.

Issues for determination

14. The pleadings give rise to the following issues:

1. Did the deceased make the representations that John alleges him to have made in paragraph 6 of the defence?

2. If so, did John rely upon those representations?

3. If so, did John suffer detriment due to his reliance upon those representations?

4. If so, what relief is John entitled to?

5. If John is not entitled to relief, does the Trustee hold the Maldon Property on constructive trust for John?

6. If not, is John entitled to equitable compensation?

7. If not, is the Trustee entitled to the relief that it seeks?

Background—the Corbett family

15. The deceased was born on 14 March 1924. He moved to Picton in 1950 and worked as an electrical contractor until 1974. During that time he married and opened an electrical shop at 36 Menangle Street with his wife, Valerie Isobel Corbett. Over time the electrical shop transformed into a hardware store. The deceased and his wife operated the hardware store together in a partnership known as ‘KW & VI Corbett’. The deceased worked in the hardware store until his death whilst his wife worked as a bookkeeper for their various businesses until she was diagnosed with dementia in 2005.

16. Throughout his life the deceased acquired and developed properties in Picton and surrounding areas. Sometimes he purchased in his own name. Other times he purchased through his various companies. These companies included K. & V. Corbett Pty. Limited, Menangle Pty Ltd and Picton Tavern Pty Ltd. I will describe the background of each company in turn.

17. K. & V. Corbett Pty. Limited was a company owned by the deceased and his wife. The deceased was a director of the company until his death. John was appointed to be a director of the company on 8 November 2006.

18. Menangle Pty Ltd was owned by all of the members of the Corbett family. The deceased and his wife held 2,500 shares each and all of the Corbett children held 375 shares each. The deceased was a director of the company, as was John from 17 April 2004.

19. Picton Tavern Pty Ltd was a company owned by the deceased and his wife. The deceased was a director of the company. John was appointed to be a director of the company on 8 November 1990.

20. John remained a director of K. & V. Corbett Pty. Limited, Menangle Pty Ltd and Picton Tavern Pty Ltd until 25 January 2011, when the Trustee appointed its own directors in his place. It is of some significance that, of all of the deceased’s children, he selected John at various times to assist him as a director of each of the companies. That is a reflection of the relationship between the deceased and John, in so far as it shows that John shouldered a unique burden amongst the children for helping the deceased in the running of his companies. Each of these companies was deregistered on 20 January 2017.

21. It is clear from the evidence that the Corbett children were expected by their parents to work in the family business. Paul gave evidence that he started assisting his parents in the hardware store when he was six or seven years old and said that all of the children were involved in fixing up the properties that the deceased acquired. This evidence was to some extent contradicted by John, who said that he could not remember Paul ever working in the hardware store, or his sisters working on any of the deceased’s houses, but was supported by Joe, who said that he recalled his parents taking the whole family to clean up and repair properties. Joe said that he worked late in the electrical store every day after school and on weekends. He gave evidence of asking the deceased if he could play with the other children or watch television instead of working, and the deceased responding: ‘No. This is a family business. It belongs to you as well. You can’t waste your time doing other things’.

22. Joe undertook an electrical apprenticeship and between the ages of 16 and 24 assisted the deceased on his various properties. Joe gave evidence that between 1989 and 1999 he assisted with the electrical work on John’s house, helped with extensions at the rear of the hardware store, did electrical works in the hardware store, assisted with the construction of a shopping centre owned by the deceased, cleaned and helped repair the Maldon Property, and worked on a property in Bondi. Joe said that he returned to Picton to manage the hardware store in 1997 on the condition that the deceased and his mother would retire. Although the deceased did not retire, Joe continued to work in the hardware store from that time.

23. When asked in cross examination about the extent to which the deceased required his children to assist in maintaining his properties, John said in relation to Joe that: ‘Joe barely got on with the old man, and may have done the odd bit, but very, very little’. However, much of the work that Joe claimed to have done for the deceased occurred at a time when John was working overseas.

24. John worked overseas until 1993, when he returned to Australia and incorporated Corbett Court with his parents for the purpose of amalgamating properties owned by himself and Menangle Pty Ltd to develop a shopping centre. Following the completion of the development, John did not have a constant source of income, and contracted as a project manager and studied at the University of Canberra.

25. From 2000 onwards, John was involved in the development of a larger shopping centre on a block of land purchased by Corbett Court. After that time, and allegedly pursuant to representations made to him by the deceased that he could have the Maldon Property in return, John developed properties owned by the deceased and his companies, and undertook other developments of his own. The full extent to which John claimed to have been involved in the development of these properties is outlined later in pars 118-141.

26. Whilst the evidence demonstrates that the deceased was strict, and expected his children to work in the family business from a young age, it also demonstrates that he was very generous to them. John gave evidence that the deceased assisted him to purchase a property on 100 Argyle Street, Picton, and described gifts of money and property that the deceased and his wife gave to Margaret, Joe, Gwen, Clare and Paul.

27. The Trustee did not challenge John’s claims and, to the extent that John referred to gifts that the deceased gave to Joe and Paul, John was supported by their evidence. For example, John claimed that the deceased gave Paul a lot of money regularly in the period before his death and, in response to John’s claim, Paul stated that the deceased paid his expenses from time to time, including the legal fees he incurred in the course of applying to be reinstated as a medical practitioner.

28. Joe gave evidence that the deceased gave him a cheque for $140,000 in 1998 to put towards purchasing a home, that he and the deceased purchased a property at 8 Menangle Street West together in 2002, that the deceased gave him $100,000 in 2004 to assist him to renovate his house, and that his mother transferred him a property located at 13 Coull Street at some time during February 2004.

29. It is also important to note that Joe gave evidence of how, when he sought to buy a portion of the deceased’s share of the land on 8 Menangle Street West from the deceased, the deceased asked him to instead transfer his interest in 8 Menangle Street West to K & V Corbett Pty Ltd, so that John could use the land for one of his development projects. Joe acceded to this request and transferred the land to K & V Corbett Pty Ltd without receiving any payment for the transfer.

30. In summary, the evidence establishes that the deceased was a strict father who expected his children to work in the family business, but in return was generous with both his money and his property. The evidence given by Joe that the deceased once told him that the family business belonged to him too, and of the deceased requesting him to return a portion of his property at 8 Menangle Street West, is significant in the context of the proceedings. The deceased was happy to give property to Joe but expected Joe to return it when it became necessary for one of the developments he was undertaking with John. Along with evidence that I will discuss in the course of describing John’s claim to have relied upon the representations made by the deceased, it shows that the deceased treated his own assets and the assets of his companies relatively informally as amongst the members of the family.

Background—the Maldon Property

31. The deceased purchased the Maldon Property in 1989. There was a house on the property at the time, which the deceased rented until he evicted the tenants for failure to pay rent in 1995. John gave evidence that the deceased asked him to paint the house to make it more attractive for future tenants but said that he found it to be extremely dilapidated, uninhabitable and unable to be repaired. The Maldon Property appears to have remained unoccupied following the eviction of the tenants in 1995.

32. In 2000, Corbett Court purchased a block of land with the intention of developing a shopping centre upon it. John gave evidence that the land required rezoning and remediation, and that there were several buildings on the site that needed to be demolished. One of those buildings was a store building, which John described as a: ‘portal frame building made of steel frame and metal cladding and roofing of 705sq metres in area’. John said that in 2001 he suggested to the deceased that this store building could be moved onto the Maldon Property for use as a workshop. The deceased agreed to this proposal, and to the repair of the house for use as an office, and as a result the store building was relocated to the Maldon Property and upgraded for use as a workshop. John stated that, of the total amount spent of relocating and upgrading the store building, K & V Corbett Pty Ltd paid $74,519.00, Corbett Constructions paid $33,850.00 and Corbett Court paid $59,997.00.

33. John also gave evidence of the renovation undertaken on the derelict house that was on the Maldon Property. He said that, from about October 2002, he installed new foundations, wall and roof timbers, roofing, wall cladding, wiring and plumbing, windows and entrance ramps and steps, had pest control remove a nest of white ants, and renovated the kitchen, bathroom and sewerage facilities. He did not state whether or not he conducted these works in his capacity as a director of any of the companies or in his capacity as an individual. However, he did state that Corbett Constructions also constructed a road, kerb and gutter on the Maldon Property in July and August 2005.

34. Following the installation of the store building and the renovation of the house, John occupied the Maldon Property, and as planned used the house as an office for the various companies. In 2005 John began leasing part of the Maldon Property to Ellis Profiling Pty Ltd. Ellis Profiling entered into two leases with Corbett Constructions, the first on 9 June 2005 and the second on 25 May 2007. At some time between 25 May 2007 and 4 October 2012, Ellis Profiling became Roadworx Profiling Pty Ltd. Corbett Constructions then began receiving rent from a company called Roadworx Surfacing Pty Ltd. It received rent until Roadworx, at the request of the Trustee, started paying rent to the Trustee on 4 October 2012.

The alleged representations

35. John claimed that in 2002 the deceased told him that he could have the Maldon Property if he continued to work in the family business developing properties owned by the deceased and his companies. The Trustee denied that the deceased ever made such a representation. I have decided that the evidence justifies a finding that the deceased made to John representations substantially to the effect that John has alleged. I will explain first the case put by John, second the case put by the Trustee, and third the reasons for my decision.

John’s case

36. John gave evidence that the deceased told him that he could have the Maldon Property during a conversation in around April 2002, about the time that they were planning to relocate the store building. John said that this conversation was to the following effect:

The deceased:   John, I want to develop the land that your Mum and I have, but I’m getting old and don’t have the energy to do it all by myself. I want you to help me develop the land. You can have Maldon if you agree to help me.

John:    Dad that’s very kind but why don’t you just sell it and all the other land as well and enjoy life.

The deceased:    No I still want to do the developments. I bought all these blocks for a purpose, it’s not so much a matter of money, I just want to see it all developed as I have been held up developing it all for so long. John, I want you to have Maldon because I’m not going to get to do the development I wanted maybe you can one day. It’s going to take a long time before Council rezone that area, and right now I don’t have the time left or energy to try and put the units on there again. So I want you to take it and run it.

John:   Okay I’ll go ahead with the shed and fix up the house as my office and now we can get on to doing your developments.

37. John also gave evidence that the deceased represented to him that the Maldon Property was his during a conversation in around July 2004. John said that this conversation was to the following effect:

John:   Dad, Now that I’ve got the office and shed on Maldon I would be happy to start focussing on the development work you want. I was thinking Corbett Constructions could do the construction work at cost plus 10% and we could then split the money we make at the end once all the development costs are met.

The deceased:   You have Maldon it’s yours to do whatever you want with it. Corbett Constructions can do the work, that way we can control the cost of the development. It’s not good using outside contractors, it will always end up like the battle we have with Quasar. 10% is a fair margin for building. Your profit can come in the future by sharing the development profit. I can finance the development.

38. It is clear from John’s evidence that his claim that the deceased represented to him that he could have the Maldon Property encompasses: (a) a claim that the deceased told John in 2002 that he could have the Maldon Property if he helped him develop his properties; and (b) a claim that the deceased told John in 2004 that the Maldon Property was his. On John’s evidence, the deceased appears to have been satisfied by 2004 that John was keeping up his end of the bargain, and considered John to have accepted the offer he made in 2002 (‘You can have Maldon if you agree to help me’) such that by 2004 the property belonged to John (‘You have Maldon it’s yours to do whatever you want with it’).

39. As further evidence of his claim that the deceased gave him the Maldon Property in 2004, John gave evidence of a conversation that he had with Mr John Bazeley, whom he described as an associate of the deceased. John said that this conversation was to the following effect:

Mr Bazeley:   I have just met with your old man at his shop to see if he has any land for parking and maintaining some large trucks and machinery. He told me that he didn’t have any but that I should come out to see what you are doing with your land and shed here.

John:   I am only using part of the Workshop and a part of it is rented, but you can rent the other part. There’s a hardstand out there to park trucks on and we could section off part of the office for your use.

40. John also gave evidence that, following the lease of part of the Maldon Property to Ellis Profiling Pty Ltd, he had conversations with the deceased on a number of occasions about making rental income from the property. He said that the deceased said on one occasion: ‘I’m glad you’ve done something so Maldon is finally returning some money to you’.

41. John called Mr Bazeley to give evidence in support of his claim. It is appropriate to set out the relevant evidence given by Mr Bazeley in full:

7.   I knew that the late Keith William Corbett for approximately 35 years prior to his death. I would often purchase items from Keith’s hardware shop, and over the years Keith and I became friends and would meet socially at the pub or the Menangle Raceway where we would often place bets together on the races. That is something we did regularly for a number of years prior to Keith’s passing.

8.   In about 2005 Greg Ellis, who was the principal of Ellis Profiling, was looking for a new place to operate the business out of. In about early 2005 we have a conversation:

Greg:   John, I’m looking for a new place to set-up shop, do you know anywhere suitable?

Me:   There is a bloke I know out at Picton who owns a fair bit of land. We can go out there and talk to him and see if any of his land is suitable?

Greg:   Okay we’ll have a look.

9.   Shortly after my conversation with Greg, I had a brief conversation with Keith Corbett out at his hardware shop in Picton:

Me:   Keith, the bloke I work for is looking for a block of land to run his workshop out of. Can you help?

Keith:   I’m not sure I have anything for you, but John owns a block of land out near the Maldon Cement Works with a shed on it. You could have a chat with him and see if he can help.

Me:   Ok, Ill speak to my boss and see if I can get him out here.

10.   I had understood the reference to John to be a reference to Keith’s son, John Corbett, who I had known, although not well, over the years as he would often be in the hardware shop when I stopped by to see Keith.

11.   Shortly after my conversation with Keith, I arranged for Greg to come out to Picton. On that day, we first went to see Keith at the hardware store.

Me:   Keith, this is Greg Ellis. He’s that guy that runs the company I work for and he is looking for some land that I told you about last time I was here.

Keith:   I don’t have anything. You should go out and see John. His block of land is next to the go-cart track on Picton Road. He should be able to help you.

Me:   Thanks. We will go out and have a look.

12.   Immediately after that conversation, Greg and I drove out to a block of land on Picton Road. I now know that the address of the land to be 240 Picton Road, Maldon. As we approached the land, I observed that there was a shed on the property with a small house next to it.

13.   Greg and I pulled up to the house and went inside where we met John Corbett. I was not involved with any negotiations regarding a lease. Shortly after that meeting with John, I am aware from having worked for Ellis Profiling that it started using the block of land to store machinery on and rented part of the shed and office.

42. Counsel for the Trustee cross-examined Mr Bazeley extensively in relation to his statement that the deceased said that John owned the Maldon Property. Counsel put to Mr Bazeley that his recollection of the conversation, which occurred more than ten years earlier, may have been a bit hazy. To this Mr Bazeley responded: ‘No’. Counsel then asked Mr Bazeley if there was anything about the conversation which made it stick out in his mind. To this Mr Bazeley responded: ‘No. Not really’. Counsel then suggested that people do not normally have good recollections of conversations that occurred one year ago let alone conversations that occurred ten years ago. To this Mr Bazeley responded: ‘I always got a good reckoning of what’s been for years. You can ask me 30 years ago something and I can tell you’.

43. Mr Bazeley stuck to his evidence that the deceased said that John owned a block of land at Maldon. In final submissions, counsel for the Trustee said that Mr Bazeley ‘appeared to have a fairly amazing recollection’.

44. John also called Mr Ellis to give evidence, and it is also appropriate to set out the relevant evidence given by Mr Ellis in full:

7.   Ellis Profiling operated out of premises at Guildford for approximately 9 number of years. In around 2005, I was looking for new premises to operate the business out of because Ellis profiling needed more space for storing the machinery it owned.

8.    Following a conversation with one of my employees, John Bazeley the effect of which was that there might be suitable land for Ellis Profiling to move to in Picton, I attended Picton one day with John Bazeley. John Bazeley introduced the late Keith Corbett.

9.    I met Keith at his hardware shop in Picton and we had a conversation:

John:   This is Greg Ellis. He’s the guy I told you about last time. He’s looking for some land and a workshop.

Me:   Hi, Keith, its nice to meet you.

Keith:   Hi Greg. You should speak to my son John. He’s got a block of land next to the go-cart track at Maldon. You should go speak to him.

John:   Thanks Keith. I’ll take Greg out there now to have a look.

10.   Following that conversation, I attended with John Bazeley to a block of land with a storage shed on Picton Road. I now know that block of land to be situated at 240 Picton Road, Maldon, NSW. Once we arrived at that block of land, I was introduced by John Bazeley to a man I now know to be John Corbett. John Corbett and I then had a conversation regarding Ellis Profiling, possibly leasing part of the land and the storage shed:

Me:   Your dad said I should talk to you about renting part of this land. I’m currently out at Guilford, but we’re looking to move and I need land with a workshop and some where I can park my trucks. You seem to have room here. Is your shed free?

John:    Well I’d be happy to rent out part of the workshop to you and you can park your trucks out the front there.

11.    We shook hands and then I left with John Bazeley. Shortly after that Ellis Profiling started renting part of a shed and office situated on the property from an entity associated with John Corbett. I cannot now recall the entity with which the lease was entered into. Ellis Profiling would also use part of the hardstand near the shed to store trucks and machinery. I did not have dealings with anyone other than John Corbett in relation to the lease of the property at Maldon.

45. Mr Ellis was not called for cross-examination.

46. In addition to the evidence given by Mr Bazeley and Mr Ellis, John relied upon evidence given by Mr Malcolm Angus Cox. Mr Cox was the deceased’s solicitor. He gave evidence that he met with the deceased and the deceased’s accountant, Mr Peter Campbell, on 7 April 2010, to discuss the finalisation of the deceased’s late wife’s estate. Mr Cox said that Mr Campbell said to the deceased words to the effect of: ‘You better make sure you have a Will’. To this he said the deceased responded: ‘Yes, I’ve nearly got it all sorted out in my mind. I know Johnny has to have the Maldon property. I might even give it to him now. I’ll come and see Angus next week when I’ve worked it out’.

47. Counsel for the Trustee cross examined Mr Cox on this aspect of his evidence. The following exchange occurred:

Q. In the affidavit, you say that when the topic of him making a will was brought up, he said, "Yes, I nearly got it all sorted out in my mind."

A. Yes.

Q. Is that right?

A. Yes.

Q. "I know Johnny has to have the Maldon property."

A. Yes.

Q. Are you sure that he said--

A. Absolutely.

Q. --words to that effect to you?

A. Absolutely.

Q. Did he indicate to you why Johnny had to have that property?

A. No, that was the limit of the conversation.

Q. He said he might even give it to him now. Is that right?

A. That's correct.

Q. Are you quite sure about that?

A. Absolutely.

Q. He was going to come and see you the next week. Is that right?

A. That's what he said.

Q. Did he say anything else about his thinking about what provisions he might provide--

A. No.

Q. --in his will?

A. No, that was the limit of the conversation regarding that. The purpose of the meeting was to discuss his late wife's estate. This conversation was at the very end of that discussion, basically on their way out, where Peter Campbell, because Mrs Corbett died intestate, he made the comment, "Well, Keith, you'd better make sure you make a will, so we don't have the same issues."

Q. But he told you that he nearly had it all sorted out in his mind?

A. Mm-hmm.

Q. Did he say anything about what he proposed to give to other children?

A. No.

Q. Did he say anything about any of the other provisions that he thought he might include in his will?

A. No.

48. Mr Campbell also gave evidence of the meeting on 7 April 2010. I note that his account differs slightly from the account given by Mr Cox. Mr Cox said in cross examination that the deceased did not indicate why John had to have the Maldon Property. Mr Campbell said that during the course of the meeting the deceased said either ‘Johnny gets Maldon’ or ‘Maldon is for Johnny’ and also that: ‘None of the other kids except Johnny want to develop the property. If I die they’d just sell the land to get cash. They’ve got no interest in what I’m doing with John’. As Mr Campbell was not called for cross examination, the inconsistency between his evidence and the evidence given by Mr Cox was not explored during the proceedings.

The Trustee’s case

49. The Trustee disputed that the deceased had made the representations claimed by John. It relied upon evidence of Paul and Joe in support of its argument that John’s account of conversations that he had with the deceased was incorrect. It also relied upon what it claimed were inconsistencies in the way that John expressed his entitlement to the Maldon Property following the death of the deceased.

50. Paul gave evidence that in 2008 he moved furniture that had been stored at another of the deceased’s properties to the Maldon Property. Paul said:

Dad did not suggest that I needed to get permission from John to store my furniture at that property, and I never asked his consent to do so. John never complained to me that I had not consulted him before moving my furniture there, or sought his permission to do so, nor did he ever assert that the Maldon Property was, or would become, his.

51. Counsel for the Trustee cross examined John about Paul storing furniture at the Maldon Property. The following exchange occurred:

Q. Do you remember your brother Paul‑‑

A. I do remember him, yes.

Q. ‑‑coming out to store some furniture at the property in 2008?

A. In 2008?

Q. Not 2008. Yes, about 2008. He stored furniture for some months at the property. Do you remember that?

A. I don't know if it was 2008, but I remember dad asked me - mum died in 2008. She went to the home in 2006. Paul cleared out either just before that or after that. So I'd say it's 2006, not 2008. But by the by, I do recall that dad asked me if Paul could store some furniture there.

Q. Was it stored in the workshop or the house?

A. Workshop.

Q. He didn't ask your permission to do that, did he?

A. Dad asked.

Q. Paul didn't ask your permission to store furniture there?

A. No, dad did.

Q. And you didn't say to Paul that he needed your permission to do that?

A. It was a small - it was a cupboard and a bed. It's so insignificant it's not worth worrying about. I wasn't going to argue the toss about storing such things for my brother in a shed if I had space.

Q. That would have been an opportunity for you to have said to Paul that you owned the property.

A. No, not at all. It's insignificant, it's immaterial, it's just helping your brother. It's not a power play for property, is it?

52. Paul gave evidence that on 21 June 2009 he moved his belongings from the Maldon Property to a unit he had rented in Coogee and said:

Again, Dad did not say that I should consult John in any way concerning the removal of my furniture from the property; I did not consult John in any way; and he did not complain that I should have done so.

53. Paul also gave evidence that on 6 April 2010 he visited the deceased at the hardware shop and the deceased said to him words to the effect: ‘I have an appointment with Angus Cox tomorrow to make a will. I want the family to have something’. Paul said that he did not discuss the details of the deceased’s intended will with the deceased, and said that he believed that the deceased did visit Angus Cox the next day.

54. Joe gave evidence that he spoke to the deceased on the telephone on 8 April 2010 and that a conversation to the effect of the following took place:

The deceased:   John wants the property at 240 Picton Street, Maldon. He knows that I have been writing my will and he wants this property to be his after I am gone. Should I give it to him?

Joe:   Dad, can’t you see what is happening. You have already given John enough. You can’t also give him that. It’s not fair on the rest of us.

The deceased:   Do you think I am being unfair?

Joe:   Yes. All John seems to do is create work for himself by using your land. He lodges DA applications on your land and then uses his companies or Corbett Court which he owns half to do the job. You have to see what is happening here. He also gets the material from the store, the council rates and the land tax gets paid by you and Mum.

The deceased:   What does he get?

Joe:   He always gets something at the end. You give him a block of land, car, trucks, all the rates and taxes paid on properties and a salary out of Corbett Court. You know he takes things from the store, I have seen him not complete any paperwork. He always gets something in the end. What about the other children?

The deceased:   Ok. You are right. I won’t give 240 Picton Road property to John. I’ll give everyone an equal share.

55. Joe was cross examined extensively about his evidence of this conversation. When asked if he was aware that the deceased proposed to give the Maldon Property to John, Joe said ‘never’. He said that it was John who proposed that he have the Maldon Property and that the deceased said that John was pressuring him into giving it to him. He also said that he had other conversations with the deceased about the Maldon Property prior to the conversation on 8 April 2010, and that the deceased had indicated that the property would be divided equally between each of the children because he ‘loves them all the same’.

56. Counsel for John put to Joe that he had not used the word ‘pressured’ or given evidence of the other conversations about the Maldon Property that he claimed to have had with the deceased in his affidavit. Joe replied: ‘Well, we can talk now about it. This is just extension, isn’t it? As I recall. So now you’re making me recall. I’m recalling’. Counsel for John then sought to gain a concession from Joe that the deceased ‘was at least contemplating’ giving the Maldon Property to John. Joe denied that the deceased was contemplating giving the property to John, even when his attention was drawn to the fact that he had given evidence in his affidavit of the deceased asking: ‘Should I give it to him?’

57. The Trustee also sought to rely upon what it alleged were inconsistencies in the way that John expressed his claim to the Maldon Property following the death of the deceased. Its argument was that the fact that John did not provide a consistent account of the representations that he now claims were made to him by the deceased, and did not claim that the deceased had made those representations immediately following the deceased’s death, goes towards establishing that the deceased did not in fact make the representations. In making this argument, the Trustee relied upon evidence of the events that occurred following the death of the deceased on 10 April 2010.

58. The first relevant event occurred on 19 June 2010, when Paul emailed a list of all of the properties and shares owned by the deceased and his companies to each of the Corbett siblings. He included the Maldon Property in a list of properties that were owned by the deceased and the deceased’s late wife as joint tenants.

59. Around about this time members of the Corbett family met with Mr Cox. Paul gave evidence that he had several meetings with Mr Cox. He said that John was present at those meetings and did not ever claim to have an interest in the Maldon Property. Counsel for the Trustee cross-examined John about these meetings and the following exchange took place:

Q. In paragraph 50 of his affidavit, Paul says, "I had several meetings with Mr Cox, the solicitor, concerning dad's estate at which John was also present."

A. l don't think it's several. I think it might have been one.

Q. Okay. He says, "At no point during those discussions did John ever raise the conversation that he alleges he had with dad in relation to the giving of the Maldon property." Do you agree that you did not raise--

A. I don't recall. The impact of dad's death and those meetings were almost immediate. It was like the wolves attacking the carcass. I was completely and utterly shell-shocked by dad's--

Q. Your answer to my question is, "I don't recall whether I brought up that topic or not"?

A. l don't think I would have.

Q. Paul also says, "At no time did John ever say" - this is during the meetings with Mr Cox, the solicitor in the early days - "that dad had given the property to him." Do you agree that you did not mention that in the meeting?

A. I don't recall one way or the other.

Q. Paul goes on to say that at no point did you say that your father had promised that if you did work on his properties, he would give Maldon to you. I take it you don't remember one way or another whether you said that?

A. I really vaguely only remember going to the meeting. I don't see it as significant in any way.

Q. Well, these were meetings with Mr Cox to try to work out what was going to happen with your father's estate, weren't they?

A. Not really. Angus had said that he would not represent any party, or the estate in general. He deflected any involvement in that matter.

60. Counsel for the Trustee pressed John twice again about the meetings with Mr Cox. The first time the following exchange occurred:

Q. In any event, the meetings with Mr Cox in the months after your father's death were an attempt to determine how his estate - how your father's estate ought be administered.

A. Angus' result - Angus' statement was that he would not be involved, and that was the meeting I went to, and having that said. There's no point - any meeting with Angus is of no benefit. Also the meetings were very quickly after dad's death. You cut me off before. The impact of dad's death was very, very significant on me because not only did I lose my father, but I lost a director, my work companion, a person I sought advice from, was involved in business with, and had enormously - plus the emotion of it all, of course, and as you say, the suddenness of it. It was a very, very difficult time. I wasn't really interested in discussing anything, really.

61. The second time the following exchange occurred:

Q. In the months after your father's death, it became important to be able to administer his estate in some way, so that all these businesses and properties, and management et cetera could move forward.

A. Exactly.

Q. There were discussions with Mr Cox, the solicitor, and arising out of those discussions it was decided to approach Perpetual Trustee--

A. No.

Q. --to ask them whether they would be prepared to accept the appointment as administrators.

A. That's wrong. My memory - clear memory was that they would appoint - they would approach the public trustee. Everyone - I think, if I can remember the meeting, the view was to approach the public trustee. That went for some weeks, or months. I wasn't directly involved in it. I think Angus was, you know, acting as a manager or an adviser. Not an adviser as such, but he made a distinct statement that he would not act for the estate.

Q. Well, you were--

A. So he suggested that - he or others, siblings, apart from me, suggested they get the public trustee to be. So that went through for a few months until such time as the public trustee wouldn't act. Then they approached Perpetual.

62. During cross examination, Mr Cox explained the purpose of the meetings in the following way:

The meeting with the family members was largely to determine how Keith's estate should be administered. And I gave them certain advice as to any one or more of the children becoming administrators. We explored the possible whereabouts of a will, and when it became clear that no will was forthcoming and I was quite certain I did not hold a will for him - I held many papers for him, title deeds and lease documents, et cetera - when it became clear that there was no will forthcoming, I gave them advice that one or more of them could become administrators, and it became clear that they could not agree on which one or ones of them would become administrators.

63. Mr Cox also gave evidence that supported John’s claim that he did not attend all of the meetings:

Q. John was present at each of these meetings, wasn't he?

A. No, not each of them.

Q. How many meetings was he present at?

A. Sorry, I can't recall, but he certainly was not present at every meeting.

Q. But he was present at more than one meeting, wasn't he?

A. I honestly don't recall.

Q. Well, he was present at at least one meeting?

A. I would say that that is accurate.

64. In relation to the claim made by Paul, and accepted by John, that John did not raise his interest in the Maldon Property during any of these meetings, the following exchange occurred:

Q. There were discussions about individual properties and what might happen with them?

A. I don't recall that.

…

Q. John did not, at the meeting that you do recall him being present at, say that promises had been made to him by his father concerning the Maldon property.

A. I don't recall that.

Q. Well, I'm putting to you that he didn't say that. Are you agreeing?

A. No, I'm saying that I don't recall whether it was said or not.

Q. When was the first time that you knew that John was claiming that his father had made representations to him in 2002 that he would received the Maldon property?

A. I'm not sure that I have ever known that.

65. The evidence given by Paul, John and Mr Cox taken together is consistent. Paul claimed that John did not raise his interest in the Maldon Property during any of the meetings that Mr Cox held with the Corbett family shortly after the death of the deceased. He did not assert specifically that John had attended all of the meetings. For this reason his evidence does not contradict the evidence given by John, who said that he remembered attending only one meeting with Mr Cox, or the evidence given by Mr Cox, who said that it was accurate to say that John was present at ‘at least one meeting’.

66. Paul’s claim that John did not raise his interest in the Maldon Property is also consistent with the account of the meetings given by John and Mr Cox. John conceded that he did not raise the Maldon Property at the meeting that he attended, but said that he did not raise it because he was still in shock following the death of the deceased, and because they were in the process of determining how the estate should be administered rather than determining who would get what as a result of the administration. Mr Cox gave evidence that was consistent with John’s recollection of the purpose of his dealings with the Corbett family following the death of the deceased. He said that he gave them advice as to how the estate could be administered and denied being involved in any conversations about individual properties.

67. It therefore appears that the early meetings with Mr Cox did not concern the apportionment of the deceased’s various properties. It would be inappropriate to suggest that John necessarily would have raised his interest in the Maldon Property at the meeting he attended, or that his failure to do so suggests that he did not consider the Maldon Property to have been promised to him by the deceased at that time.

68. On 17 November 2010, the Trustee was appointed to administer the deceased’s estate.

69. Paul gave evidence that John did not raise a claim in relation to the Maldon Property during any of the early meetings with the Trustee. John was not cross-examined on this aspect of Paul’s evidence.

70. On 24 February 2011, John emailed his siblings with what he described as a ‘possible solution to Corbett Court and the relationship with the Estates’. In relation to the Maldon Property he proposed that: ‘240 Picton Road is gifted to me as to be arranged by dad in the last few weeks of his life and told to several family members’. Counsel for the Trustee cross examined John about his statement in this email and the following exchange occurred:

Q. You see that in the point numbered 3, you are proposing that the property is gifted to you, "as to be arranged by Dad in the last few weeks of his life and told to several family members". Do you see that?

A. Yes.

Q. You don't say that, in fact, you are entitled to it or are the owner of it as a result of promises that he had made many years earlier, do you?

A. No, because it's just a brief point.

Q. What you say is that that property should be given to you because that was what your father, in the last few weeks of his life, was going to arrange.

A. No. What he was going to do in the last few weeks of his life was to bring about the transfer of the land so that his promise of much earlier was enacted and would proceed without all the nonsense that brings us here today.

Q. You don't say, "My father promised me this property in 2002 if I did work for free, and I've been doing that for ten years and the property is mine as a result of that."

A. Well, clearly it doesn't. But if you look at the nature of the email, it's - it talks about, you know - each item, each one of those lines, you could have, you know, 30 pages of documents to support it. This is an email to family and it - it's - it - it's - it's a summary. It's - it's not a detail. It - it

Q. But, Mr Corbett

A. It's asking - it's asking their approval or opinion or whether this is something that they would be prepared to pursue.

Q. But you don't even say, here, that it was to be arranged and told to you and several family members. You don't even indicate that there was any indication from your father to you--

A. I--

Q. --relating to this property?

A. Not - this is - as I say, this is a summary, in point form, of a - of - of a way to alleviate the entire process of what you just went through with Quasar.

Q. Paragraph 3--

A. Having - having - having - having just spent - having, you know - having been through that process, I'm - you know, and - and wanting to learn something from it

Q. Paragraph 3--

A. --the last thing I wanted was to end up here. So, with that in mind - and February 24, 2011 was - is - was important because Perpetual were appointed in the end of 2010. There may have been a meeting in December

Q. But, Mr Corbett, paragraph 3 of that letter is completely at odds with your evidence in this case, isn't it?

A. No, it's not.

Q. It is suggesting--

A. It - it - it's different - it's different language. But in terms of informality with the family siblings, it's - it's - it's certainly not in - it's - it's - it's the same.

Q. I want to put to you that if you had had the discussions with your father that you give evidence of, you would, in this email to your siblings, have said, "Dad promised me - Dad promised me Picton Road if I worked for him on his projects for free, which I did."

A. Free if you did what?

Q. "I worked for free on his projects." You understand what I'm putting to you?

A. Not - not - not at all. Not at all. There wasn't - that wasn't my thinking in writing it. My thinking in writing it was - was to avoid - avoid a process like this, to be honest, seven years down the track.

71. On 26 February 2011, John emailed his siblings and the Trustee, apparently in response to emails from Joe and Margaret that were not in evidence. In relation to the Maldon Property, he said:

Dad gifted 240 Picton Road to me many times and especially reasserted this in the last weeks of his life in recognition of me suggesting purchase in the first place and building the buildings on it. He and mum were immensely proud of the recycled buildings I put there and rebuilding the derelict house as the office for all the companies. It was a dump in 2004 before I started.

72. John was not cross examined about this email.

73. On 7 April 2011, John filed a summons in the Supreme Court of New South Wales seeking an order for provision from the estate of the deceased. John filed a notice of discontinuance in those proceedings on 11 July 2012, apparently after receiving legal advice that the court would not be likely to make an order in his favour because his proper maintenance, education and advancement in life was already well provided for.

74. John swore an affidavit in the family provision proceedings on 18 April 2011. The Trustee attempted to tender the affidavit as evidence in these proceedings but counsel for John objected. I allowed the affidavit to be admitted on the sole basis that it was to be admitted as proof that John made the statement in the third sentence of paragraph 40. That sentence was: ‘Dad repeatedly told me he would gift [the Maldon Property] to me in recognition for the work done there’.

75. On 12 April 2012, John sent the following email to his siblings and the Trustee in relation to his claims for work done on the Maldon Property and other properties owned by the deceased:

I have been asked by Perpetual’s Solicitors to make out my case for claims against Mum’s Estate for work done in relation to Coull St and Picton Ave land.

If I do this I will need to make claims for all land I have worked on and set out the promises made by dad on each of them over many years. Most obvious are

2-6 Progress St Tahmoor

91-103 Menangle St, Picton

9-11 Menangle St West

8-10 Menangle St West, relocated house

32-40 Menangle St Picton, commercial development

32 Picton Ave, house

240 Picton Rd Maldon

40 Bronzewing St Tahmoor

35-40 Bronzewing St Thirlmere

56 Turner St Thirlmere.

I note some of these lots are for sale currently, although I have not been asked or informed. In making a claim now these sales are most likely to be postponed.

I too would like to resolve the matter without delay and costs.

My motivation for making a claim is to have sufficient resources to allow Corbett Court to continue and grow without ongoing financial stress and hardship to myself and family.

The commercial property market is depressed to the point the value of Corbett Court's assets are below the value of the loan to NAB.

I am committed to installing Target as a tenant to improve the value of the assets and am arranging finance to do this.

I will make a rights issue in Corbett Court and take up shares myself or with Renee plus a loan to the Company from John Corbett. It seems there is no other way to raise the capital as all other shareholders are not interested in participating.

Even so, with Target in place and the expenditure of $1m plus on my behalf I do not have sufficient assets to provide the security for the bank loan. Currently NAB require an LVR of 54%, which is coming down all the time as they seek less exposure. With the expected value of Corbett Court with Target in place to be around $18m I seek at least $2m to inject to reduce the NAB debt to around $12m.

I can validate work for the estate and/or clear and specific promises made by dad on projects underway that would allow a value of $2m to flow from the Estate to Corbett Court.

Nothing is clear in these matters but it most likely there are provisions in equity that would allow these claims to be made out.

Why shouldn’t I be paid for the work I have done, or promised I could do and have been willing to complete for two years, and use this money to protect Corbett Court if that is my wish? It is too risky to throw other assets at Corbett Court beyond the $1m I am prepared to spend to promote it in today’s market. It is a long term proposition.

The estates are not broke as has been suggested, they seem to be worth around $14m. In redirecting $2m and putting it into Corbett Court I do not see any one’s maintenance or advancement in life being harmed, there is enough left over for all.

I proceed in this matter as I believe it is what was promised to me and what Dad would have done.

I have tried to settle the matter by requesting that the property at Maldon be given to me but this was rejected by Perpetual. There is clear independent evidence that this was dad’s intention the day before his accident.

I await any comments prior to notifying Perpetual of my claims against both Estates.

I appeal to you all to settle this claim without the need for court action, costs and further emotional turmoil.

76. Paul said in his affidavit that this email was the first occasion upon which he became aware that John wanted to claim the Maldon Property. However, John had proposed in his email on 24 February 2011 (referred to above at par 70) that he receive the Maldon Property: ‘as to be arranged by dad in the last few weeks of his life and told to several family members’. Paul was one of the recipients of that email but said during cross examination that he did not recall seeing it. He was not given an opportunity to explain why he did not recall seeing the email beyond explaining that the dispute over the Maldon Property was between the Trustee and John.

76. Counsel for the Trustee cross-examined John on this email and asked him why, rather than saying that the deceased had promised him the Maldon Property, he simply listed it with the other properties without singling it out for any special treatment. The following exchange occurred:

Q. You are saying to the Court in this case that your father had made a promise to you that it would be yours on his death?

A. Yes.

Q. Why did you not say that in this email?

A. Because the email addresses, the first line. "I have been asked by perpetual solicitors to make out my case for claims against mum's estate for work done in relation to that." That's what I was focused on.

78. It seemed at first as if counsel for the Trustee was ignoring or had failed to notice John’s statement in the third last paragraph of the extract above (‘I have tried to settle the matter by requesting that the property at Maldon be given to me but this was rejected by Perpetual. There is clear independent evidence that this was dad’s intention the day before his accident.’). However, the following exchange occurred later in the cross-examination:

Q. And you go on to say, "I have tried to settle the matter by requesting the property at Maldon be given to me, but this was rejected by Perpetual." You see that?

A. Yes.

Q. "There is clear, independent evidence this was Dad's intention the day before his accident."

A. Yes.

Q. Why didn't you say, "Dad had promised this to me, specifically, in 2002, and I've been acting in reliance on that ever since"?

A. Because there's no need to. Because that's been - that was relayed to other parties, and this is a summary to the siblings who already know that.

Q. This is the third or fourth communication from you in which you had an opportunity to make your claim to be entitled to this property, because of the promises that your father made to you about it, which you have not taken up.

A. No, it's not the case. I mean, you can see it that way, but it's not the way it's intended …

79. John explained that the email was not an expression of his claim to the Maldon Property but rather a: ‘plea of common sense to settle [his] claim without the need for court action, costs and further emotional turmoil’. Counsel for the Trustee responded to this statement in the following way:

But, Mr Corbett, you say that this letter is expressed the way it is to avoid conflict with your siblings and because you'd been chastened by the cost and the experience of going through the Quasar court proceedings. But at the time you sent this email, you had proceedings on foot against the estate for family provision orders, didn't you?

80. This question seemed to suggest that John, because he had commenced proceedings against the estate seeking family provision, could not have sent the 12 April 2012 email for the purpose of avoiding litigation. However, the email was marked ‘WITHOUT PREJUDICE’. It is likely that John, when he said he wanted to avoid litigation, was referring to the litigation that was on foot. In this sense the fact that he had commenced proceedings against the estate was not necessarily inconsistent with him having a desire to avoid litigation.

81. On 11 May 2012, John sent the following email to the Trustee:

Considering the current valuation of Corbett Court I would like to make the following suggestion.

I will inject the funds necessary to install Target and take on the guarantees from the estate if

1.   The inter company "loans" are forgiven, as they can't be repaid in any case unless action is taken to increase the value of the properties and the company cannot borrow in its own name currently These loans on the Menangle and K&V Corbett P/L balance sheet should now be valued as zero this financial year If they went back to the companies they would have to be taxed in any case.

2.   I can purchase 35 & 45 Marion St and Turner St, Thirlmere properties for $1 75m, settled in twelve months.

3.   I can purchase 2-6 Progress Tahmoor for 610,000, settled in 12 months and construct the buildings now.

4.   240 Picton Rd Maldon is transferred to me as was dad's last clear wish and I have my office and workshop here.

5.   I control all shares in Corbett Court. The current structure is clearly unworkable.

This way gives me a chance to create the capital needed to take on the guarantees for Corbett Court, the estates are clear to be distributed, my desire to have recognition for the work I have done over many years is achieved and the estates have not lost anything they have got now, except some interest on the sale of two properties.

Please discuss with perpetual and hold off the sale of these properties until this option is considered.

82. Counsel for the Trustee put to John that his statement in this email was inconsistent with his statement in his email on 24 February 2011 (‘240 Picton Road is gifted to me as to be arranged by dad in the last few weeks of his life and told to several family members’). This cross examination took some time as John attempted to explain in detail the circumstances of the various companies in early 2011. The essence of what counsel for the Trustee put to John was that it was inconsistent for him to tell the Trustee that he should receive the Maldon Property because his office and workshop were located on it, and in recognition of the work that he had done, when he had not raised that matter in his earlier email.

83. In relation to John’s statement that the office and workshop were located on the Maldon Property, the following exchange is most relevant:

Q. … The question is that what you've said in paragraph 4 is completely inconsistent with your evidence in this case, isn't it?

A. No, of course it's not, and I was trying to answer that.

…

Q. In that paragraph numbered 4, you say that you want it to be, or you are proposing that it be transferred to you because that was your father's last clear wish. That is one reason. Do you see that?

A. Yes.

Q. And the second reason that you want it to be transferred to you is because you have your office and workshop there.

A. No. But see, you've got the emphasis wrong in your mind, with due respect. What I was trying to say is around May 2012 was a very tumultuous time for me, and Corbett Court, and in general, and the estates, and for the siblings because Corbett Court had no equity. Corbett Court, as you said, had guarantees given to it by the estate companies, and Keith Corbett, and John Corbett, but it had no money, and it had no ability to borrow. So what do I do? Do I walk away? I didn't want to do that. I will inject the funds necessary to install Target and take on the guarantees from the estate. Now, a year prior I had issued a share offer to--

Q. Mr Corbett--

A. This is all the answer, sir.

Q. l don't think this is an answer.

A. This is all the answer.

84. In relation to John’s statement that he wanted recognition for his work, the following exchange is most relevant:

Q. Look you wanted some recognition for all of the work that you'd done for your father over the years, didn't you?

A. My desire to have recognition for the work I have done for many years is the truth. The answer is yes.

Q. That's what you say in the penultimate paragraph of this email.

A. Well, the answer is yes.

Q. Why didn't you say, "My father promised this land to me, and I have been acting on that promise for 10 years"?

A. Because it wasn't in that context. I had discussed that with Gary Holbrook verbally. He was aware of that. This is a summary, and it's only one point. Maldon in the scheme of things is only small. What I was trying to do, the thinking of that time, and the purpose of that email is how do I fund Corbett Court, not necessarily setting out a legal case about Maldon.

85. On 4 October 2012, Roadworx Surfacing Pty Ltd began paying rent to the Trustee pursuant to a letter of demand that the Trustee sent to it following its appointment as administrator of the deceased’s estate. Mr Gregory Pitt, an employee of the Trustee, investigated the rent received by Corbett Constructions between the death of the deceased and 30 June 2012. It appears that Corbett Constructions received $141,932.30 in rent excluding GST during that period. The evidence does not establish how much Corbett Constructions received after 30 June 2012. It also appears that Corbett Constructions paid expenses totalling $10,115.71 in respect of the Maldon Property between 19 January 2011 and 30 June 2012. The evidence does not establish how much it spent before 19 January 2011 and after 30 June 2012.

86. On 3 May 2013, the Trustee held a meeting with John, other members of the Corbett family, Gary Holbrook, Jonathan Cave, Anthony Baker and Matt Pearson. Ms Michelle Maynard, who was the senior legal counsel of the Trustee at the time, gave evidence of what happened in the meeting in her affidavit sworn 26 November 2015. She said that the purpose of the meeting was to find a way to release the estate and its related companies from their liability to the National Australia Bank.

87. Ms Maynard annexed a copy of her notes from the meeting. In relation to the Maldon Property, she recorded the following:

Discussed valuation of 240 Picton Road & rezoning.

[John] wants his approval subject to purchasing 240 Picton Road at $600,000.

Issue for [John] is increased risk [therefore] he would assume sole responsibility for the NAB loan.

[John] will only assume risk of supporting whole NAB loan if he can purchase 240 Picton Road for $600,000.

[John] threatened “challenges”.

Issue with 240 Picton Road is personal—believes he was given the property by his father.

[Clare] put forward proposal for [John] to purchase 240 Picton Rd at current value.

Most important thing is to release the NAB loan.

[John] agrees to release estate from NAB loan if estate pays $1.37m to NAB + he purchases 240 Picton Rd for $600,000.

88. Ms Maynard’s notes referred to other matters, such as the sale of the hardware store and what to do with the companies and other properties, then ended with the statement: ‘[John] agrees to pay $700,000 for Maldon’.

89. On 14 August 2013, the Trustee held a second meeting. In relation to the Maldon Property, Ms Maynard made the following notes:

[John] threatening to put caveat on 240 Picton Rd.

[John] renovated house on 240 Picton Rd. He did not build the house.

[Gary Holbrook] to redraft his proposal.

Property team to serve notice on Roadworx & [John] to vacate the property.

90. Ms Maynard said in her affidavit that John had threatened to lodge a caveat over the Maldon Property when he was told that the Trustee intended to sell the property and would not recognise that he had any rights to it. She also said that she believed her reference to John having renovated the house was a recording of what John said during the meeting.

91. John referred to this meeting in his affidavit sworn 31 August 2015. He gave evidence that Ms Maynard said to him that the Trustee accepted that the improvements on the Maldon Property were his and that they were of no value to the Trustee. Ms Maynard said in response that she did not recall making such a statement and said that there was no discussion at the meeting about the shed on the Maldon Property. She said that she would not have referred to the shed as ‘having no value’ because it was of significant value. During cross examination, John confirmed what he said in his affidavit and said: ‘She definitely said that they were of no interest to [the Trustee]’.

92. On 22 October 2013, John emailed the Trustee in relation to the shed on the Maldon Property. He said: ‘There is no doubt kv & vi corbett do not own the shed. Corbett constructions built it, occupies it and leases it. I have a legitimate interest in the land.’ Counsel for the Trustee again questioned John as to why he did not state in this email that the deceased promised him the Maldon Property. The following exchange occurred:

Q. You are telling Mr Pearson there that as a result of the fact that Corbett Constructions built, occupies and leases the shed, you have a legitimate interest in that land.

A. Yes.

Q. You are not saying that your legitimate interest springs from representations made to you by your father many years before, upon which you've been acting ever since.

A. No. But in the FPA claim, I said I had - I said that, as discussed this morning.

Q. Why did you not say to Mr Pearson in this email that you are the owner, or entitled to be the owner, of the land because of the promises that your father made, on which you've been acting for many years?

A. Because I told him that many times verbally. This is 2013. He's got to know me for three years by that stage; two years since the FPA claim.

93. On 13 November 2013, John lodged an expression of interest to buy the Maldon Property with the agent of the Trustee. His offer was for $750,000 but included the stipulation that: ‘Price is for Land only. All improvements including road, earth embankment, hard stand shed, renovations to house, and services connections are our property, which we value @ $734,000’. Counsel for the Trustee put to John that his offer was inconsistent with his claim that he was entitled to be the absolute owner of the land. John explained why he offered to pay $750,000 in the following way:

So after three years of emotional turmoil, I saw the light at the end of the tunnel and thought: I don't agree with them selling it. I've asked them and represented many, many times that I believed that it was mine. They won't listen. I don't want to go to court. I'm sick of court. Costs a lot of money, even if you win you lose. Perpetual's last valuation in November 2012 was $750,000. I thought: once and for all I'll fix it. I'll give them $750,000. I made the proviso that I believe I own the sheds, because I built them and I leased them and all the other things.

94. On 6 December 2013, John lodged a caveat against the title to the Maldon Property. On 24 July 2014, the Trustee commenced these proceedings.

95. I set out John’s affidavit evidence of the representations that he claimed the deceased made above at pars 36 and 37. In short, John said that the deceased told him in April 2002 that he could have the Maldon Property if he helped the deceased develop his properties (‘You can have Maldon if you agree to help me’) and told him in July 2004 that the Maldon Property was his (‘You have Maldon it’s yours to do whatever you want with it’).

96. The Trustee submitted that the totality of this evidence demonstrates that, on various occasions when it would have been relevant and important to assert that the deceased had made the representations, John said nothing about them, and that when he did refer to promises made by the deceased, he was not consistent in describing the subject matter of those promises. In these circumstances, the Trustee submitted that the court could not have confidence in John’s evidence, particularly in light of the principle in Watson v Foxman (1995) 49 NSWLR 315.

Consideration

97. The principle in Watson v Foxman is a convenient place to begin consideration of the competing cases advanced by the parties. In that case, McLelland CJ in Eq said in relation to misleading and deceptive conduct:

Where in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as "misleading") within the meaning of s52 of the Trade Practices Act (or s42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the Court (1) what the alleged conduct was, and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, 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 (but not all) 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. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding" (Helton v Allen [1940] HCA 20; 63 CLR 691 at 712).

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action based on s52 of the Trade Practices Act (or s42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration... I have the clear impression that Mr Foxman's memory of conversations in 1990 between himself and Mr Cross is not sufficiently clear to enable him to actually recall any of the critical words said to have been used by Mr Cross in the conversation deposed to in para8 of his affidavit. I believe that his account of that conversation is predominantly a reconstruction made some years after the event.

98. In finding that the deceased made the representations in 2002 and 2004 alleged by John I have given weight to the warnings expressed by McLelland CJ in Eq, but have been influenced by a number of countervailing factors.

99. The essence of the representations alleged was in each case simple and straightforward (‘You can have Maldon’ in the first case, and ‘You have Maldon it’s yours’ in the second). These are statements that would readily be understood and remembered by John. A finding that the statements were made does not to any substantial degree require precise evidence of the whole of the relevant conversations or the context. A finding that the statements were made can largely be justified by reliance on the credibility of John. They are not statements whose effect would naturally tend to diminish with the passage of time.

100. I did find John to be overall a credible witness who I am satisfied gave evidence honestly and to the best of his recollection. Naturally, John’s recollection would as with all people be affected by the passage of time in relation to peripheral and less significant matters. As I have said, I do not consider the statements that the deceased is said to have made to be in any way complex or peripheral. I am satisfied that John responded to questions in cross examination candidly and forthrightly. Although, at the end of the day, the Trustee submitted that I should not accept the evidence given by John concerning the making of the representations, it was not suggested that John had not given his evidence honestly.

101. I have taken into account the fact that the statements upon which John has relied were made orally by the deceased, there were no witnesses to the statements being made, and John’s evidence that they were made is highly self-interested.

156. In any event, as shown by Emmett AJA, the issue is not whether John would have acted differently if the deceased had not made the representations; it is whether John was influenced, in a significant or material way, such that the representations were a contributing cause to his conduct or made a difference to his action or inaction, so that it would be unconscionable for the deceased’s estate, represented by the Trustee, to resile from the assumptions and belief that the deceased induced in John. I am satisfied that John’s evidence satisfies this test.

157. The Trustee also submitted that, at least in all of the cases where the work carried out by John was undertaken for the benefit of a company for which John was a director, the Court should find that John carried out the work in performance of his duty as a director, and not in reliance upon the representations made by the deceased.

158. I do not accept this submission, as in my view the obligations of a director towards the company do not require the director without remuneration to engage in all types of work for the benefit of the company that may further its commercial objectives, but which would ordinarily be undertaken by some professional or worker for reward. A company director is obliged to undertake on behalf of the company all of the duties imposed by company law on directors, and if a person accepts an appointment as a director of a company without first securing an agreement with the company to be remunerated for his or her efforts, then unless the company’s constitution provides for the remuneration of directors, the person may be obliged to perform his or her duties without reward. It may be that in small private companies that the boundary between what a person is or is not obliged to do in his or her capacity as a director may be to some little extent blurred. However, in my view it is not true that the directors of a company are duty-bound to provide services to the company without reward where those services would in the ordinary course of business be provided by others for reward.

159. It is clear in my view from the conclusions that I have expressed above where I have stated my findings concerning all of the work done by John for the benefit of the various companies at different locations that, even though John may not have undertaken precisely all of the work that he claimed, he undertook a very substantial amount of work over a considerable period of years after the representations were made which was work that he was not obliged to do without reward as a director, and which was work that substantially benefited the various companies in which the deceased had interests.

160. In the context of its submissions on the reliance issue, the Trustee pointed out that a number of the properties were half owned by John’s mother, and that there was no evidence that representations had been made to John by his mother to similar effect to the representations made by the deceased.

161. It is true that there was no evidence that John’s mother made any representations to him. In my view it would probably not be unsafe for the Court to infer in the absence of specific evidence that either John’s mother left the business affairs that she jointly conducted with the deceased in the deceased’s hands, or that she knew what was going on and was content to be bound by the manner in which the deceased conducted their joint affairs.

162. It is not in my view, however, necessary for the Court to rely upon an inference to this effect in the present case. The deceased was the owner of the Maldon Property jointly with his wife. Upon her death, the full beneficial ownership in the property passed to the deceased by survivorship. Even if the representations made by the deceased to John did not bind his wife, they bound the deceased. Consequently, as the representations were to the effect that John would become entitled to the entirety of the beneficial ownership of the Maldon Property, when the deceased acquired the whole of that ownership by survivorship, the consequence was that the estoppel binding the deceased’s estate would extend to the whole of the beneficial ownership. That is because it would be unconscionable for the deceased or his estate to say that even though the representations related to the whole of the beneficial ownership, at the times the representations were made they were not made by the other joint owner.

163. I conclude, therefore, that John has established that he relevantly acted in reliance upon the representations that I have found were made by the deceased.

164. The Trustee also made submissions to the effect that John has not established that any reliance by him on the representations made by the deceased caused John to suffer any relevant detriment, such that the Trustee’s resiling from the representations would be unconscionable. Strictly, it is the detriment caused by the estate’s resiling from the assumptions caused by John having relied upon the deceased’s representations that is the detriment that Equity acts to prevent. The detriment arises because John would in consequence be deprived of the benefit of the assumption on the basis of which John acted to his disadvantage and the deceased’s advantage. Commonly, those disadvantages are also called detriments (as if the acts done in reliance are detriments rather than the consequences of the resiling from the assumption). Emmett AJA himself in Priestley v Priestley has recognised this dual use of the term detriment at [134] where his Honour said (footnotes omitted):

… the fundamental purpose of equitable estoppel is to protect a person who acts to her or his detriment from the detriment that would flow from resiling from a promise or representation. Accordingly, the relief granted may require the taking of active steps by the representor or promisor, including the performance of the promise or representation or the performance of the expectation generated by the promise or representation

168. The Trustee complained that John’s evidence was not detailed in respect of the time and the nature of the work done by John, as opposed to the other defendants or other people, and in respect of particular properties. That is to a large extent true. It is not surprising that in a family context where there is no practice of keeping detailed records, it has not proved to be possible for John to recreate by specific evidence all of the work that he claims to have done in reliance upon the representations.

169. It is also true that the evidence is relatively confused and incomplete concerning precisely which work was done by which defendant.

170. However, in my opinion it sufficiently appears from a holistic consideration of the work that I have analysed above that in reality it was John that undertook a substantial amount of work for the benefit of his father’s interests; albeit that the work may have been undertaken in the name of one of the other defendants, or one of the deceased’s companies. In many other cases the work appears to have been done by some third-party, but the point is that a finding is justified that the work viewed on an overall basis was instigated by, and supervised and managed by John; but still in a great many cases actually done by John personally.

171. The evidence suggests that there are some cases where Corbett Constructions may have been paid on a cost plus 10% basis, but even in those cases a finding is justified that generally John provided his services to initiate and manage projects.

172. The ultimate point is that I am satisfied that over the period of about eight years between the making of the first representation in 2002 and the death of the deceased in 2010, John provided very substantial services for the benefit of the deceased without reward in reliance on the representations, in circumstances where it is not now possible to separately prove in any precise way all of the individual pieces of work that were undertaken by John without reward, or to value that work in so far as it benefited the deceased.

173. It is therefore not in my view necessary for the defendants to be able to establish with any precision what work was done for the benefit of the deceased by each defendant, and what the value of that work was. Nor is it a good answer to John’s case, as the Trustee submitted, to claim that the collective detriment suffered by the defendants must specifically be identified and shared between them so that the relief to be granted to each must be shown to be proportional to their separate detriments. The reality is that on many occasions John acted through Corbett Constructions, of which he held 2001 shares out of 2002. On many other occasions he acted through Corbett Court, of which John and his wife initially owned half of the shares between them. On many other occasions still John did the work but acted in the name of some company of which he was a director, but the shares in which were owned by the deceased and his wife. In these circumstances, I reject the submission that John’s case must fail for reason of his inability to differentiate between the nature and value of work done by him solely in his own name, as opposed to work effectively done by him but in the name of some other party, or with the assistance of some other person.

174. I also do not accept the Trustee’s argument that John’s claim should fail because he has not been able with precision to reconstruct on an accounting basis all of the financial relationships between himself, the deceased, his mother, his siblings, and all of the companies, in a way that enables him to prove precisely that he has suffered some residual financial detriment after all intra-family payments and loans have been taken into account. Again, it is true that John has not been able to do this by means of the evidence that he has tendered in support of his case. However, when one objectively considers all of the work that I have accepted by means of the analysis set out above was undertaken by John personally for the benefit of the deceased, the conclusion is warranted that the lion’s share of the work, if not all, was done without any record being made, or without any invoice being created to record the value of the work. That being the case, it is a proper inference that it is unlikely in the extreme that John has ultimately been rewarded for all of the work by reason of any entries in the family’s or the companies’ accounts. As a separate matter, I reject the Trustee’s submission that the absence of invoices is a ground for dismissing John’s claim.

175. The Trustee put a submission that it is not possible to determine that the defendants have suffered an overall detriment having regard to the fact that the defendants have enjoyed rent-free accommodation at the Maldon Property for many years and that Corbett Constructions has received substantial rent from tenants of part of the property.

176. That submission must be bad in respect of all periods for which the Trustee seeks an order in these proceedings that the defendants be ordered to pay amounts as mesne profits to the Trustee. For the part of the Maldon Property occupied by the defendants, that is for the whole of the period since the date of the death of the deceased. In respect of the part of the property leased to third parties, the claim is for the period from the date of the deceased’s death to the date from which the tenants paid the rent to the Trustee following its demand. Clearly, benefits that the defendants have to repay to the Trustee cannot be benefits that countervail other detriments suffered by them.

177. In principle, the benefit of occupation of part of the Maldon Property and the receipt of rent for the period before the death of the deceased should also be the subject of a mesne profits claimed by the Trustee, if its case is valid, save for the fact that it has not made that claim. In any event, there is no reason in the evidence to suppose that any benefits of this type enjoyed by the defendants before the death of the deceased, which they are able to retain, would negate in monetary terms all of the other detriments that John has established.

178. There was evidence that, as of the time when the representations were made by the deceased, the Maldon Property had a value in the order of $300,000, and the parties agreed between themselves that the defendants expended some $630,000 in undertaking improvements to the property. One consequence of these facts is that there is no reason to conclude that the benefit of occupation and the receipt of rent by the defendants was anything other than a reasonable commercial reward for the expenditure, so that it would not negate the value of all of the other detriments suffered by John.

Relief

179. I should record that as I understand it neither party suggested that in the present case anything turns on the precise nature of the proprietary estoppel relied upon by John.

180. In Priestley v Priestley, Macfarlan JA said:

[7] In Milling v Hardie [2014] NSWCA 163 at [52], I referred to two distinct lines of authority concerning proprietary estoppel. One descends from Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285. In that type of case, the defendant makes a promise or representation and the plaintiff acts in reliance upon it. I referred to Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 and other cases as examples of this type of case.

[8] The other line of authority descends from Ramsden v Dyson (1866) LR 1 HL 129. In New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288 at 308, Jordan CJ described this type of estoppel as follows:

What is usually referred to as the principle in Ramsden v Dyson (of which that case was not itself an illustration) or equitable estoppel by acquiescence, becomes applicable where a person improves land in the mistaken assumption that it is his own, the true owner being aware of the mistake and deliberately doing nothing to undeceive the other; in such a case a Court of Equity, so far as it can, will prevent the owner from profiting by the mistake.

See also Meagher, Gummow and Lehane’s Equity Doctrines & Remedies, (5th ed 2015, Lexis Nexis Butterworths) at [17–080].

181. The Trustee clearly submitted that any proprietary estoppel in the present case would arise out of the line of authority that flows from Dillwyn v Llewelyn, and I do not understand that the defendants have suggested to the contrary. That appears to me to be right in substance and I have proceeded on that basis.

182. It is also appropriate to repeat, with respect, the following further observation made by Macfarlan JA:

[18] It is sufficient that Duncan’s assistance was substantial even though it was not quantifiable (Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 at [147]). The primary judge’s findings on the quantum meruit claim indicate that even in purely financial terms, and calculating from 2008 rather than 2007, Duncan’s contribution was significant. Moreover, the intangible value of a son’s care and assistance given to his father who was in his mid-eighties and attempting to maintain the operations of a large rural property cannot be underestimated. This is not a case where the benefit to Gordon was confined to “a relatively small, readily quantifiable monetary outlay” (Sidhu v Van Dyke at [84]). On the contrary, the benefit was a substantial one that justified relief being granted to Duncan that fulfilled his belief.

183. The Trustee made a submission that if John's case was otherwise made out the proprietary estoppel should not have the effect that the beneficial ownership of the Maldon Property should be vested in John, but on the principle discussed in Giumelli v Giumelli (1919) 196 CLR 101; [1999] HCA 10 at [10], [49] and [51], and Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 10 at [84], the remedy should be limited to an order to pay equitable compensation in such amounts as the defendants may have been able to prove strictly they expended in reliance upon the representations made by the deceased. The Trustee submitted in effect that even if John was induced to suffer a detriment by acting in reliance upon the representations made by the deceased, the detriment was relatively small and could readily be quantified in monetary terms. Consequently, the detriment suffered could not be characterised as “of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature … beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based”, to use the words of Nettle JA (as his Honour then was) adopted by the plurality in Sidhu v Van Dyke at [84].

184. The Trustee dealt with the fact that the defendants had expended some $630,000 in improving the Maldon Property at a time when its value was about $300,000, and that over many years John, and the other defendants at John’s behest, had conferred considerable benefit on the deceased and his companies in a manner that was not readily quantifiable by pointing to the fact that between 2005 and 2012 Corbett Constructions had received rent from tenants amounting to approximately $494,000, and that the defendants had rent-free occupation of the balance of the property for many years which it said was valued at some $202,000. The Trustee also put the submission that the defendants had not been able to quantify substantial expenditure on the faith of the representations (the Trustee referred in its final written submissions to evidence of Corbett Constructions having expended $33,850 and Corbett Cord having spent $59,997).

185. I do not accept these submissions, and find that the effect of the detriment suffered by John by acting in reliance upon the deceased’s representations justifies an order by the Court that the full title to the Maldon Property be transferred to John, as otherwise the Trustee’s repudiation of the deceased’s representations would be unconscionable.

186. I have respectfully been guided by the following observations made by Emmett AJA in Priestley v Priestley (footnotes omitted):

[164] The principle of proportionality applies only in unusual cases where proprietary relief would be out of all proportion to the detriment. The proper measure of relief in a case where the detriment to a promisee or representee is something substantial is performance of the promise or representation. The detriment or harm required to ground an estoppel can be any material disadvantage, so long as it is substantial. It need not be quantifiable in the same way as an order for damages. Detriment is not a narrow or technical concept and need not be a quantifiable financial detriment so long as it is something substantial. The evaluation of the substantiality of the detriment must be approached as part of a broad inquiry as to whether repudiation of a promise or representation is or is not unconscionable in all the circumstances.

[165] It is not necessary to mould a remedy in the case of equitable estoppel to reflect the minimum relief necessary to remove the detriment. On a fair view of the evidence before the primary judge, it would not be wholly inequitable or unjust to make good the assumption and belief on which Duncan relied for nearly eight years.

[166] The primary judge erred in failing to determine that Duncan’s work on Salt Glen and his financial support to Gordon over seven years was substantial and in evaluating the detriment on the basis of accounting evidence led in support of the alternative quantum meruit claim. Evaluating detriment in proprietary estoppel is an entirely different task from that of evaluating restitution in a quantum meruit claim. It is to be evaluated as the opportunity cost to the promise or representee in continuing to rely on the relevant promise or representation.

[167] Detriment for the purposes of determining the appropriate relief in the case of proprietary estoppel should not be evaluated as the cost to the promisor or representor in obtaining similar services to those provided by the representee or promisee. Duncan’s detrimental reliance was very significant to him and substantial. The detriment that he suffered was of a kind and extent that involved life changing decisions and irreversible consequences of a profoundly personal nature, beyond the measure of money.

187. In my view, the arithmetical manner in which the Trustee has supported its submission that the defendants’ remedies should be limited to equitable compensation for demonstrated losses is not in accordance with established principle. The fact that the defendants spent some $630,000 to improve a property with a market value of about $300,000 goes a long way by itself to justify a conclusion that the proper relief is to require the title to the Maldon Property to be transferred to John. It is true that for the money paid the defendants between them have enjoyed the occupation of part of the property and received a significant amount of rent in respect of the other part. However, it would be wrong to focus on these benefits, as that would ignore the essentially unquantifiable detriment that resulted from the manifold assistance that they collectively gave to the deceased and his companies over many years in relation to the development and attempted development of the many other properties in which the deceased had interests.

188. Accordingly, the proper result is that an order be made for the transfer of the Maldon Property into John’s name.

189. I am fortified in this conclusion by a comfortable degree of satisfaction on the evidence that this outcome accords with the intentions of the deceased.

190. It is not necessary for the Court to address the alternative basis for relief propounded by the defendants in their cross claim.

191. It follows that, as John has been entitled to enjoy the beneficial ownership of the Maldon Property since relatively soon after the deceased made the representations, John inferentially authorised Corbett Constructions to lease part of the property to a series of tenants, and from 4 October 2012 the Trustee has received the rent from the tenants following its demand in that respect, an order should be made that the Trustee pay the amount of rent received, plus interest, to John or Corbett Constructions as John may elect. I do not understand the Trustee to have resisted this outcome, if any of the defendants were successful in establishing that they were entitled to the full beneficial ownership of the Maldon Property.

192. The Trustee should be ordered to pay the defendants’ costs of the proceedings including the cross claim.

193. The parties should bring in short minutes of order to give effect to these reasons for judgment within 14 days.

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Decision last updated: 16 February 2018