Quigley v Quigley - [2013] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: QUIGLEY -v- QUIGLEY [2013] WADC 68

CORAM: BRADDOCK DCJ

HEARD: 17 OCTOBER 2012

DELIVERED : 14 MAY 2013

FILE NO/S: CIV 3589 of 2011

BETWEEN: PETER RAYMOND QUIGLEY
Plaintiff
AND
JOHN ROBERT QUIGLEY
Defendant

Catchwords:

Summary judgment - Contract under seal - Oral revocation - Disposition of interest in land consideration - Part performance - Equitable estoppel

Legislation:

Property Law Act s 34(1)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr J A Thomson
Defendant: Mr G R Donaldson SC

Solicitors:

Plaintiff: Q Legal
Defendant: Lemonis/Tantiprasuf Lawyers

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

Delaforce v Simpson‑Cook [2010] NSWCA 84
Giumelli v Giumelli (1999) 196 CLR 101
Grey v The Inland Revenue Commissioners [1959] 3 All ER 603
McBride v Sandland (1918) 25 CLR 69
SAS Global Forrestdale Pty Ltd v Towton Investments Pty Ltd [2010] WASC 167
The Commonwealth v Verwayen (1990) 170 CLR 394
Wigan v Edwards (1973) 1 ALR 497

BRADDOCK DCJ: On 15 April 1972, Mr John Michael Quigley made his will. It was a simple, short document. He bequeathed the whole of his real and personal estate to his sons, John Robert Quigley and Peter Raymond Quigley, in equal shares and appointed both of those sons as executors and trustees of his will. The balance of the will was in standard form dealing with the substitution of the children of either of beneficiaries should they not survive him and providing the usual powers and provisions relating to trustees.
In 1976, John Michael Quigley (Mr Quigley Snr) bought a property at 25 Bournemouth Parade in Trigg where he lived until September 1989. Mr Quigley Snr had only the two sons named in his will.
Around 1981, Mr John Robert Quigley (John Quigley) purchased a property in 315 West Coast Drive, Trigg. In 1986, John Quigley and his wife bought a property at 10 Mettam Street in Trigg, which was then occupied by John Quigley's parents‑in‑law.
In 1988, a property adjacent to the West Coast Drive property, 6 Mettam Street, came up for sale and John Quigley wished to buy it as an investment. He proposed to build a house upon it, in which his father could reside where he would be close to his family. After some discussions, it was agreed between Mr Quigley Snr and John Quigley that Mr Quigley Snr would sell his property in Bournemouth Parade, John Quigley would purchase the land at 6 Mettam Street, the proceeds of sale from the Bournemouth Street property would be used to build a house on 6 Mettam Street for Mr Quigley Snr to live in, and that after Mr Quigley Snr's death an amount equal to 50% of the value of the Bournemouth Parade property at the time of the death would be paid to his other son Peter Quigley.
John Quigley became the registered proprietor of 6 Mettam Street on 8 August 1989. Mr Quigley Snr settled the sale of Bournemouth Parade on 16 September 1989 and deposited the proceeds into John Quigley's bank account. The 6 Mettam Street property was developed and a house built upon it. Mr Quigley Snr moved into the property in early 1990.
After this, John Quigley and his first wife separated. John Quigley went to reside with his father at 6 Mettam Street for a time. In early 1995 approximately, John Quigley had financial difficulties and was involved in property settlement proceedings in the Family Court with his then wife. He advised his father to protect his (Mr Quigley Snr's) interest in the 6 Mettam Street property. He spoke to his brother Peter Quigley and advised him that Mr Quigley Snr needed to protect his life interest in 6 Mettam Street.
On 22 February 1995, Mr Quigley Snr placed a caveat over 6 Mettam Street. On 3 March 1995, Mr Quigley Snr and John Quigley entered into a deed recording their prior agreement about the property. That deed provided amongst other things that on the death of Mr Quigley Snr, John Quigley should pay Peter Quigley an amount equivalent to one half of a sum defined as the equivalent market value of the Bournemouth Parade property. It further declared Mr Quigley Snr to be a life tenant of the land and that John Quigley held the land upon trust for him to the extent of the value of the former residence. I will return later to the full terms and effect of the deed.
On 19 June 1995, John Quigley reached a property settlement with his wife by way of consent orders made in the Family Court. He retained the property at 315 West Coast Drive, and the property at 6 Mettam Street. His former wife was entitled to the sole use and occupation of 315 West Coast Drive for five years, whilst John Quigley was responsible for the outgoings of that property. At the same time, John Quigley had an outstanding liability to the Australian Tax Office. He advised his father that he thought he was going to have to sell 6 Mettam Street, which upset his father who told him he did not wish to move away from his family. John Quigley said he would do what he could to maintain his father in the property.
At that time, John Quigley was in a relationship with Ms Darryl Wookey. It was arranged that Ms Wookey would buy a one third interest in 6 Mettam Street. The funds were intended to enable John Quigley to keep that property. John Quigley has deposed to the fact that his father agreed to a further arrangement by which:
(a)John Quigley would do his best to keep 6 Mettam Street.
(b)Mr Quigley Snr would stay at 6 Mettam Street.
(c)Mr John Quigley would continue to make the mortgage repayments and pay land tax.
(d)Upon Mr Quigley Snr's death John Quigley would get Mick Malone to value the house and improvements to 6 Mettam Street as new.
(e)John Quigley would pay his brother one half of the value of the house and improvements as valued by Mick Malone.
That agreement was not reduced to writing at any time.
On 10 August 1995, Mr Quigley Snr withdrew his caveat. John Quigley transferred one third of his interest in 6 Mettam Street to Ms Wookey for $110,000. On 14 August, a land tax memorial was withdrawn from the property.
Subsequently, John Quigley's relationship with Ms Wookey came to an end. In January 1998, she required that John Quigley re‑purchase her interest in the property. John Quigley discussed this with his father, indicating that he needed to buy Ms Wookey's interest and that the property would come back to him entirely. The father's response was 'I want you to do everything you can to keep the property'. Mr Quigley Snr said that at the end of the day he would be happy if after he died John Quigley paid Peter Quigley half the cost of the improvements, at the time of his death.
On 6 March 1998, Ms Wookey transferred her one third interest in the property for $120,000 to John Quigley. John Quigley increased the mortgage on 6 Mettam Street in order to purchase this interest from Ms Wookey.
At the end of 1999, John Quigley had further financial difficulties which resulted in the National Australia Bank issuing default notices on the mortgage over 6 Mettam Street, which Mr Quigley Snr received. There was a further discussion between the two, affirming the oral agreement between them. Mr Quigley Snr then placed a further caveat over the title on 20 April 2000. This caveat was in almost identical terms to the first caveat and the statutory declaration in support of the caveat recited the original agreement and the fact that he claimed an interest in the land as a beneficiary under a constructive trust and as a life tenant. It made no mention of the subsequent oral arrangements.
After that, Mr Quigley Snr and John Quigley had a further discussion in which John Quigley pointed out the discrepancies between the caveat and their subsequent arrangements. Nothing resulted from this in relation to the title or documentation.
Mr Quigley Snr continued to live at 6 Mettam Street with assistance from his family until September 2007, when he moved to the Anchorage Aged Care facility in Mindarie. Thereafter, 6 Mettam Street was rented out by John Quigley. In October 2007, Mr Quigley Snr withdrew the caveat over 6 Mettam Street and signed an enduring power of attorney appointing John Quigley. John Quigley met Mr Quigley Snr's expenses, and paid the bond at Anchorage in the sum of $25,000.
Mr Quigley Snr died on 9 May 2008. Subsequent conversations between John Quigley and Peter Quigley revealed that Peter Quigley was unaware of the discussions and oral agreement between John Quigley and their father. Peter Quigley claimed payment pursuant to the deed. The issue could not be resolved ultimately leading to the issuing of a writ by Peter Quigley on 10 November 2011.
Peter Quigley claimed $525,000 plus interest and costs relying upon the deed. A valuation of the property at 25 Bournemouth Parade had been conducted by Mr Ross Sharp on 10 July 2008 wherein he valued the property at $1,050,000. On 12 August 2008, Peter Quigley demanded half that sum from John Quigley.

Application for summary judgment

There is no issue as to the applicable principles upon an application for summary judgment. These principles were summarised in SAS Global Forrestdale Pty Ltd v Towton Investments Pty Ltd [2010] WASC 167 in the following terms:
13.In Henderson v Curtis [2008] WASC 283, Beech J said [2]:
'The principles relevant to the grant of summary judgment are not in doubt. Summary judgment will be granted only when there is no real question to be tried. Conflicts of evidence on affidavit are not to be determined in the context of an application for summary judgment. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]'.
14.Summary judgment should only be granted if there is no fairly arguable point to be brought forward: Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 514.
15.The power to order summary judgment is one that should be exercised with great care, and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. The fact that the defendant has not positively established a defence does not mean that there may not be a question in dispute which ought to be tried: Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 20.
16.The overall legal burden of persuasion lies on the applicant for summary judgment, but the party showing cause assumes an evidentiary burden: Cordinup Resorts v Terana Holdings (24).
17.Whilst the court may determine any difficult question of law on such an application, it will, at least often, be appropriate to leave the determination of such questions for trial: cf Theseus Exploration NL v Foyster (514 ‑515; Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36]; Western United Ltd v Sheahan [2001] SASC 74 [55].
Peter Quigley argues that he is entitled to bring the proceedings in his personal capacity and as executor of his father's will. He relies upon the deed and the trust created by that deed over 6 Mettam Street. In support of the application, Peter Quigley relies upon affidavits sworn by himself on 29 November 2011, 7 February 2012, 23 February 2012 and affidavits of Heather Quigley of 23 February 2012 and Andrew Quigley of 23 February 2012. The application is opposed by John Quigley who has filed an affidavit dated 24 January 2012, together with an affidavit of his current wife Michelle Claire Quigley sworn 23 January 2012 and an affidavit of Mr Stephen John Lemonis of 16 August 2012.

Peter Quigley's case

The statement of claim [amended pursuant to an order of Registrar Kingsley on 13 July 2012] pleads as follows:
On or about 3 March 1995 the father and the defendant entered into a deed the material terms of which were that:
(a)the father would sell the former residence and apply the proceeds of sale towards the improvement of Mettam Street;
(b)upon the death of the father, the defendant must pay to the plaintiff (who is entitled to enforce this promise in his capacity as an executor of the father's estate and by reason of section 11 of the Property Law Act 1969) an agreed sum equal to half the value of the former residence to be valued as at the date of the father's death; and
(c)the valuation of the former residence is to be conducted by a registered valuer and that valuation is final and binding upon the defendant.
He further pleads that he is entitled to receive half the value of the former residence, as at 9 May 2008, and that he is entitled in his capacity as joint executor to enforce the obligations of John Quigley and also in his personal capacity. He pleads that his brother did not agree to the appointment of a valuer that a valuer was appointed through the West Australian Division of the Australian Property Institute and that Mr Sharp conducted a valuation. Peter Quigley claims the fixed sum of $525,000 and in the alternative, a declaration that the deed is binding upon John Quigley in his capacity as joint executor and the defendant in his capacity personally and as joint executor.
For the purposes of the application for summary judgment only, Peter Quigley has argued his position on the basis that John Quigley will be able to establish the factual matters he has alleged in his affidavits.
Peter Quigley relies on evidence of various documents, not only the deed of 3 March 1995. The documents establish the chronology set out above, which is not controversial as to the acquisition and sale of the various properties. The certificate of title relating to 6 Mettam Street shows that when 6 Mettam Street was transferred to John Quigley on 8 August 1989, it was simultaneously subject to a mortgage to the Westpac Savings Bank Ltd. On 31 October 1991, a memorial pursuant to s 46 of the Land Tax Assessment Act 1976 was lodged, subsequently withdrawn on 29 June 1993. A further mortgage to the Westpac Banking Corporation is shown to have been registered on 16 July 1993. On 14 August 1995 the original mortgage to Westpac Savings Bank, the subsequent mortgage to the Westpac Banking Corporation, a caveat lodged on 23 February 1995 and the Land Tax Assessment Act memorial were all withdrawn. Simultaneously, a mortgage to the National Australia Bank was registered, which appears to have been subsequently replaced by a further mortgage to the National Australia Bank on 6 March 1998. The second caveat lodged against the property by Mr Quigley Snr is shown as registered on 20 April 2000. Accordingly, 6 Mettam Street was at all material times subject to a first legal mortgage.
The deed of 3 March 1995 recites that John Quigley is the registered proprietor of 6 Mettam Street and that John Quigley and Mr Quigley Snr have agreed to record their rights and obligations in respect of that land. The deed relevantly provides:
1.DEFINITIONS AND INTERPRETATION
1.1Definitions
In this Deed, unless the contrary intention appears:
'the Land' means Lot 668 on Plan 4098 being all the land comprised in Certificate of Title Volume 1817 Folio 270;
'Former Residence' means the unencumbered duplex property situated at 25A Bournemouth Parade, Trigg, Western Australia being Lot 1 on Strata Plan 3230 and being one undivided half share of all the land comprised in Certificate of Title Volume 1437 Folio 688, of which JMQ was the registered proprietor in 1989;
'Proceeds of Sale' means the net proceeds of sale of the Former Residence;
'Agreed Sum' means an amount equivalent to the market value of the Former Residence, valued at the date of sale of the Land as determined by a registered valuer, appointed by the parties, or in the event that the Former Residence is demolished or destroyed, the market value of a property of equivalent size and construction located in the same area, as determined by the registered valuer and in all cases, the decision of the registered valuer shall be final and binding upon JRQ;
1.2Interpretation
In this Deed
(a)words importing the singular number include the plural number and vice versa;
(b)words importing one gender include each other gender;
(c)a reference to any of the parties by their defined terms include that party's executors, administrators and permitted assigns;
(d)every argument or undertaking express or implied by which more persons than one agree or undertake any obligation or derive any benefit under this Deed, binds or benefits those persons jointly and each of them severally;
(e)head notes are for reference purposes only; and
(f)a reference to any item is a reference to an item in the schedule to this Deed.
2.OPERATIVE PART
2.1Acquisition and Development of the Land
The parties hereby acknowledge and declare that in or about August 1989, JMQ and JRQ agreed to purchase and develop the Land as a joint enterprise on the following terms:
(a)JRQ would acquire the unimproved Land in his name and finance the acquisition by granting a mortgage over the Land;
(b)JMQ would sell the Former Residence;
(c)The Proceeds of Sale would be applied to improvements upon the Land including the erection of a dwelling upon the Land;
(d)JMQ would apply further moneys towards improvements to the Land, such as supplying reticulation, lawns, gardens, floor coverings and curtains; and
(e)JMQ would be a life tenant of the Land.
2.2Redemption of Interest in the Land by JMQ
The parties hereby acknowledge and declare that in or about August 1989, JMQ and JRQ agreed that:
(a)if for any reason JMQ wishes to redeem his interest in the Land, JMQ could require JRQ to sell the Land and from the proceeds of sale of the Land, the Agreed Sum would be paid to JMQ upon completion of the sale of the Land;
(b)should the proceeds of sale of the Land be insufficient to discharge the mortgage over the Land and pay to JMQ the Agreed Sum, then JRQ shall be liable to JMQ for any short‑fall so that at all times JMQ would receive from JRQ or from the sale of the Land, or both as the case may be, the Agreed Sum; and
(c)if JRQ wishes to retain the Land, JRQ shall pay to JMQ, the Agreed Sum within 30 days of the demand specified in clause 2.3.
2.3To give effect to clause 2.2, JMQ may at any time serve on JRQ a written demand requiring JRQ to sell the Land.
2.4Death of JMQ
Upon the death of JMQ, JRQ shall pay to PETER REYMOND QUIGLEY, the other son of JMQ, an amount equivalent to one‑half of the Agreed Sum. JMQ's personal representative shall be entitled to appoint a registered valuer to determine the market value of the Former Residence at the date of death and the decision of that valuer shall be final and binding upon JRQ.
2.5Interest in the Land
JRQ hereby declares that:
(a)JMQ is the life tenant of the Land; and
(b)JRQ holds upon trust for JMQ the Land to the extent to which the proceeds of sale of the Land or share thereof is equivalent to the Agreed Sum.
2.6Caveats
The parties acknowledge and declare that in or about August 1989 JMQ and JRQ agreed that JMQ may lodge a caveat on the Land to protect his interest in the Land and the parties agree that JMQ has a caveatable interest arising from the agreement in or about August 1989 and confirmed by the provisions of this Deed.
Peter Quigley's case rests upon the obligation at par 2.4. That obligation is that John Quigley pay his brother after Mr Quigley Snr's death, a sum of money, defined as one half of the 'agreed sum' in the deed. The definition in the deed is less than comprehensive, as it speaks only of valuation at the time of the sale of 6 Mettam Street, which would have arisen under the provision for redemption of his interest by Mr Quigley Snr. However, it was not argued that the definition did not apply in relation to the calculation of the obligation under par 2.4. Pursuant to this provision, Peter Quigley appointed a registered valuer to determine the market value, and thereby fix the amount claimed in this action. No issue was taken with that process in argument on this application.

Peter Quigley argues that the deed, amongst other things, created a legal life interest in the land in favour of Mr Quigley Snr, a trust over the land to the extent of the agreed sum, a personal obligation on John Quigley to provide a life tenancy to Mr Quigley Snr and a personal obligation upon John Quigley to pay one half of the agreed sum following his father's death.
An applicant for summary judgment must persuade the court that summary judgment should be granted, that is to say, to establish that that there is no real question to be tried. In answer to the application, John Quigley has advanced a number of arguments, and has provided evidence to establish the facts set out above in relation to a subsequent oral agreement and surrounding circumstances. John Quigley argues that the subsequent oral agreement constituted a contract, which substituted the terms agreed orally for the deed previously executed. In addition, John Quigley relies upon the same oral exchanges to constitute a representation by Mr Quigley Snr to the effect that if John Quigley continued to make mortgage payments and thereby allowed Mr Quigley Snr to remain in the 6 Mettam Street, upon Mr Quigley Snr's death, the obligation to pay money to Peter Quigley would be varied to substitute a sum as equal to half the value of the house and improvements at 6 Mettam Street, at the time of Mr Quigley Snr's death.
John Quigley argued that in reliance upon that representation he had acted to his detriment by:
(1)continuing to make mortgage payments upon 6 Mettam Street, for a period in excess of 10 years;
(2)transferring a third of his interest in the property to Ms Wookey; and
(3)making payments of $25,000 to facilitate the entry of Mr Quigley Snr into the aged care home whilst retaining 6 Mettam Street in case he wished to and was able to return to the property.
The argument was that, but for the representation, John Quigley would have ceased to pay the mortgage. It is said therefore that it would be unconscionable for the personal representative of Mr Quigley Snr to insist upon enforcement of the deed.
A number of further arguments were advanced for John Quigley concerning the precise nature of the interest of Mr Quigley Snr prior to the execution of the deed, the effect of the land being subject always to a legal mortgage to the bank, and whether the oral agreement constituted a disposition of the father's interest in the land under s 34(1) of the Property Law Act.
The position of Peter Quigley is that there are compelling answers to each of the matters raised by John Quigley, such that the court may be satisfied to the required degree of certainty about the ultimate outcome of proceedings.

Property Law Act s 34(1)

The deed created a life tenancy. A legal life tenancy is an interest in land. This is not a contentious proposition. The deed also, in cl 2.5(b), created a trust. A trust of land creates an equitable interest in the land the subject of the trust. This is not a controversial proposition. The trust would persist, under the terms of the deed, until either Mr Quigley Snr during his life elected to redeem his interest, or one half of the agreed sum was paid to Mr Peter Quigley, after Mr Quigley Snr's death, assuming he had not redeemed his interest prior to that time. The deed binds the parties and their executors and administrators and thus such a trust would continue following the death of Mr Quigley Snr, until such time as it was terminated consistently with the terms of the deed.
John Quigley argued, in written submissions, that there was no disposition by the subsequent oral agreement, within the meaning of s 34(1) of the Property Law Act.
Section 7 of that Act provides:
disposition includes a conveyance and also a devise, bequest or an appointment of property contained in a will; and dispose of has a corresponding meaning.
It was argued that those words and the concept of disposition do not include the release of the interests created under the deed in this matter. On the other hand, Peter Quigley agreed that s 7 does not purport to define disposition exclusively, but to expand upon or clarify its meaning in terms for the purposes of the Act. The word disposition is to be given its natural meaning: Grey v The Inland Revenue Commissioners [1959] 3 All ER 603.

Consideration and part performance

John Quigley relies upon part performance of the oral agreement by the actions he took in paying the mortgage, amongst other things, and learned argument was advanced concerning the doctrine of part performance, and its current exposition in Australia. However, the doctrine of part performance requires that there should first be an agreement in the nature of a contract, supported by consideration. The argument of Peter Quigley is that there was no consideration at all for the oral agreement upon which John Quigley relies. If that is correct, the doctrine of part performance has no role to play on these facts.
It is well established that any variation of an obligation under seal requires a further agreement under seal, at common law, or, in equity, may be released or varied by a contract with consideration. The argument of Peter Quigley is that there was no consideration moving from John Quigley to his father such as to establish an enforceable contract. The consideration contended for by John Quigley at the time of the oral agreement has to be discerned from the terms of that agreement itself. John Quigley sets out the agreement at pars 33 and 34 of his affidavit, as follows:
33.I then went to speak to my father about Ms Wookey buying a one third interest in the 6 Mettam Street Property, which would give me sufficient funds to enable me to keep that property and discharge my obligations under my financial settlement with Mary Ellen. I said to my father words to the effect 'my partner Darryl Wookey could buy a one third interest in the 6 Mettam Street Property which will enable me to keep it'. My father said to me words to the effect 'I want to stay at the property'. We then discussed a new proposal between the two of us. The proposal was to the effect that:
(a)I will do my best to keep the 6 Mettam St Property;
(b)my father will stay at the 6 Mettam St Property;
(c)I will continue to make the mortgage repayments and pay the land tax;
(d)upon my father's death, I will get Mick Malone to value the house and improvements to the 6 Mettam Street Property as new;
(e)I will pay to my brother one half of the value of the house and improvements as valued by Mick Malone.
34.My father and I agreed to this revised arrangement. One of us said words to the effect set out at paragraph 33(a), (b), (c) and (e) and the other said words to the effect agreeing to that. The agreement was not reduced to writing.
The context was the property settlement reached with John Quigley's first wife, the liability he had to the Australian Taxation Office and his financial position generally.
In par 31 of the same affidavit, John Quigley stated:
31.As a result of the Family Court settlement and my liability to ATO, I did not think I would be able to retain the 6 Mettam Street Property. I said to my father words to the effect 'I think I am going to have to sell the 6 Mettam Street Property. From the proceeds you take whatever you need to repurchase the Bournemouth Parade Property or another property close by, which will put you back in the position you were in previously'. My father was upset by this and said to me words to the effect 'I don't want to move away from my family'. I said to him words to the effect 'I just don't think I can keep paying the mortgage on the 6 Mettam Street Property, but I'll see what I can do to keep you there'. I discussed this with my father about half a dozen times.
John Quigley goes on to indicate that he explored the possibility of raising funds from Ms Wookey, which would require a transfer of a share in the property, as an investment. Mr Peter Quigley's argument is that there is no discernable consideration provided to Mr Quigley Snr in the terms of that agreement. It is said that Mr Quigley Snr gained only the benefit to which he was already entitled: that is the ability to live at 6 Mettam Street for as long as he so wished. John Quigley, in promising he would do his best to keep the property, was an undertaking to do no more than he was obliged to do. The variation of the payment to Peter Quigley on Mr Quigley Snr's death was no benefit to Mr Quigley Snr. It appears to be common ground that the payment would be less than that provided for under deed. Thus, it benefited John Quigley, ultimately.

Estoppel

John Quigley further relies upon equitable estoppel, arising out of the same agreement. It is contended that the agreement by the father amounted to a representation, expressed as a representation that the oral agreement was an enforceable agreement upon which John Quigley relied, to his detriment. It was argued that this may be a matter of legal characterisation of the particular exchange, but it was argued strongly that the effect was that it would be now unconscionable for the executor of Mr Quigley Snr to enforce the obligations under the deed.
Peter Quigley's argument is that there was no detriment demonstrated by John Quigley, that he had improved his position, his payment of the mortgage was only that which he was obliged to do, and that his care for his father was not attributable to the agreement, but rather to natural love and affection for his father.
The question of detriment comes to be considered at the time that the representation is ultimately relied upon in equity in answer to a claim. Peter Quigley argued that the transfer to Ms Wookey was ineffective to found that detriment due to the fact that the interest in the property was subsequently returned to John Quigley by transfer for consideration. Further, it was argued that for Mr Quigley Snr, who was not legally qualified, to advance a representation that an oral agreement was in the circumstances enforceable, to John Quigley, who is a legal practitioner, such that he relied upon it, was inherently implausible.
Peter Quigley relied upon dicta of McHugh J:
Because the equitable doctrines (a promissory and proprietary estoppel) create rights, they preclude the party estopped from denying the assumption of fact (or law) only as long as the equitable right exists. Once the detriment has ceased or been paid for there is nothing unconscionable in a party insisting in reverting to his or her former relationship with the other party and enforcing his strict or her strict legal rights.
The Commonwealth v Verwayen (1990) 170 CLR 394, 501.
Further, Giumelli v Giumelli (1999) 196 CLR 101, 124 [44].
… the detriment was seen as a prejudice which the plaintiff was still suffering at the relevant time, not merely prejudice which had already been sustained before the initiation of action.
Further relief may be refused or reduced if a plaintiff's equity has been diminished by later events: Delaforce v Simpson‑Cook [2010] NSWCA 84 [61].
There was no evidence as to the current value 6 Mettam Street, Trigg. There was limited evidence as to John Quigley's finances at significant times in these events.

John Quigley's position

No dispute has been raised as to the efficacy or authenticity of the deed at the time it was executed. John Quigley argued that it was terminated and replaced by the oral agreement shortly thereafter. It was argued that Mr Quigley Snr's interest was always vulnerable to the mortgage over the property, and that had John Quigley been unable to or failed to continue the mortgage payments Mr Quigley Snr would not have been able to remain in the property. When John Quigley, having concluded a property settlement with his first wife, found himself in a difficult financial position, it is said that his father made a realistic assessment of the changed circumstances and agreed to vary the agreement accordingly. The argument was that any transfer to Ms Wookey was inconsistent with the life tenancy provided by in the deed and his withdrawal of the caveat to facilitate that transfer indicates that the whole arrangement had then changed. On that basis, John Quigley continued to pay the mortgage and did so for about 13 years, to his detriment, reliant upon the representation or agreement by his father that he would only have to pay half of the value of the improvements to his brother subsequently. John Quigley also did everything he could to maintain his father in the property, even after his failing health made this personally difficult. He then paid for other expenses in relation to the aged care home and his father's comforts.

Discussion

A summary judgment application may determine a claim, even where matters are complex, there being the one issue to be considered: can it be said that there is no issue to be tried. This requires an analysis of the position of the parties under the deed, the oral agreement propounded by John Quigley and the actions of John Quigley subsequent to those events. It is not necessary to consider or determine the nature of Mr Quigley Snr's interests prior to the entry into the deed. Nor is it profitable to consider what may have happened in circumstances which did not eventuate, such as action by the bank to foreclose upon the mortgage. Nor whether Ms Wookey would have taken her interest in the property when she held such interest subject to the rights of Mr Quigley Snr. Although some criticism was raised as to the drafting of the deed, in my view it is clear and it was not argued to the contrary, that the deed created:
1.A legal life tenancy in favour of Mr Quigley Snr, and
2.A personal obligation upon John Quigley to provide that life interest to Mr Quigley Snr or should Mr Quigley Snr elect to depart, to repay to Mr Quigley Snr the value of the property that he had sold as at the time he elected to redeem his interest, and
3.A personal obligation on John Quigley to pay Peter Quigley an amount equivalent to one half of that sum, as valued at the relevant time (if not repaid prior), and
4.A trust over the land in favour of Mr Quigley Snr to the extent of the agreed sum.
It is beyond argument that John Quigley's title to the land was always subject to a mortgage to one or other bank. Thus, Mr Quigley Snr's interest would never prevail over the first legal mortgagee, there being no suggestion the bank(s) had notice of his interest.
The terms of the oral agreement alleged by John Quigley would substitute a lesser obligation to pay his brother after his father's death.
The deed, it must be observed, provided the ability to Mr Quigley Snr to caveat the title to protect his interest if he so wished which he did, twice. The deed provides Mr Quigley Snr with an option to resile from the agreement by giving notice and being repaid his money, but it does not provide John Quigley with any means of opting out of his obligations under the deed. The deed does not refer to the mortgage or outgoings on the property.
The subsequent oral agreement must be taken for the purposes of this application to be established. The agreement contains express terms to the effect:
(i)an undertaking by John Quigley to do his best to keep 6 Mettam Street;
(ii)a licence to occupy the property to Mr Quigley Snr;
(iii)an undertaking by John Quigley to pay the mortgage and the land tax;
(iv)an undertaking by John Quigley to engage Mick Malone to value the house and improvements on 6 Mettam Street after Mr Quigley Snr's death;
(v)an undertaking by John Quigley to pay his brother half the sum assessed by Mick Malone under par (iv) above.
It is not suggested by John Quigley that any terms of the oral agreement are to be found elsewhere. John Quigley deposes to a number of occasions subsequently when his father repeated his desire to continue to reside in the property and his trust in John Quigley to devise a way to do so. He also repeated that he would be happy for the payment to Peter Quigley to be half the costs of the improvements at the time of his death.
The obligations created by the deed unarguably continue unless and until discharged in accordance with the terms of the deed, or revoked or varied in a recognised and enforceable manner. The oral agreement is said by John Quigley to supersede the deed. It is described as a 'new proposal between the two of us'. There is no express term in the oral agreement which refers to the obligations under the deed previously executed. The first two terms above are lesser obligations than those in the deed. The fourth and fifth terms are inconsistent with cl 2.4 and the definition of the 'agreed sum' of the deed, in that they substitute the value of the improvements for one half of the agreed sum and the person of Mick Malone for a registered valuer. The third term is an obligation not expressed in the deed.
Mr Quigley Snr and John Quigley came to this arrangement in the context of John Quigley fearing he would have to sell 6 Mettam Street due to his financial circumstances. He expressed, in par 31 of his affidavit, that in those circumstances his father would have to take whatever he needed to re-purchase the Bournemouth Parade property or another property close by to put him in the same position as previously. John Quigley clearly had in mind his obligations under the deed. It was in that context that Mr Quigley Snr indicated he did not wish to move away from his family. He, the father, made no reference at all to the deed.
At par 35, John Quigley makes it abundantly clear that he considered the substitution of the payment in the oral agreement to his brother to be to his advantage over the payment required under the deed. He says this:
I would not have agreed with my father to keep the Mettam Street property if it was on the basis that on my father's death, I would have to pay my brother half of the value of the Bournemouth Parade property valued at the date of my father's death.
Logically, the amount payable to Peter Quigley upon the death of Mr Quigley Snr had no direct bearing in 1995 upon John Quigley's ability to retain the Mettam Street property by payment of the necessary outgoings and the mortgage. It was to be a future advantage or benefit to him.
John Quigley's position is that the oral agreement revoked the deed. If that is the case, in my view the oral agreement would constitute a disposition of Mr Quigley Snr's interest in the land, his legal life interest, and his equity under the trust declared in the deed to the extent of the agreed sum in cl 2.5(b).
My reasons for this conclusion are that the term 'disposition' is not to be construed narrowly, as in the original Statute of Frauds 1677 (Imp). The construction of that term was considered in the context of the assessment of stamp duty in Grey v The Inland Revenue Commissioners, construing the Property Law Act 1925 in England. Both in the Court of Appeal and the House of Lords, an argument seeking to restrict the meaning of the word 'disposition' in the context of the Property Law Act 1925 s 53(1)(c) failed. The West Australian Property Law Act 1969 stands in a different position, in my view, to the (Imperial) Statute of Frauds and is equivalent in this respect to the Property Law Act 1925. The word 'disposition' is to be given its natural meaning.
The Macquarie Dictionary states 'dispose of' in relation to property means 'to make over or part with as by gift or sale'. The suggestion is made for John Quigley that this does not include a release or surrender. How it could be that releasing or surrendering an interest could not amount to parting with one's property or interest, whether it be described as a gift or otherwise or a sale or otherwise? If the oral agreement supplants the deed, then in my view, taking the natural meaning of the word 'dispose of', that oral agreement disposed of Mr Quigley Snr's legal interest as a life tenant in the property, disposed of his equitable interest in the land pursuant to the trust, and the consequential obligations attached to such a trust.

Accordingly, the oral agreement between John Quigley and his father, if it revoked the deed, constituted a disposition of both legal and equitable interests by Mr Quigley Snr. Accordingly, s 34(1) requires that the disposition be in writing.
In the absence of such writing the deed subsists and the oral agreement could only take effect as a defence to a plea of the absence of writing, and in one of two ways: either, it is a contract that has been partly performed and therefore it would be inequitable to insist upon the requirement of writing or, it amounts to a representation from which, in the circumstances it would be unconscionable to permit the maker to resile.

Contract

It is a basic tenet that a contract requires consideration to be effective. Taking John Quigley's case, presently it is difficult to discern any consideration for the oral agreement. A promise not to break a contract is not consideration: Wigan v Edwards (1973) 1 ALR 497, 512. Put another way, Mr Quigley Snr got no practical benefit out of the agreement, to which he was not already entitled. Under the deed, he was entitled to reside as a life tenant in the property for as long as he desired. It is true that a right might have been defeated in practice by the mortgagee and in such circumstances there would have been further consequences, which John Quigley well understood: par 31 of his affidavit. For there to be consideration, the promise to use best effort to keep the house and pay mortgage/outgoings would have to equate to an undertaking over and above the obligations under the deed. On the basis that the value of the improvements would at that time and subsequently be less (and probably substantially less) than the value of the land and property at Bournemouth Parade, the agreement to vary the payment to Peter Quigley was only of benefit to John Quigley. Without consideration, there was no agreement upon which the doctrine of part performance could be brought to bear: McBride v Sandland (1918) 25 CLR 69. There are no other terms in the oral agreement amounting to a promise of benefit or assistance.

Estoppel

Peter Quigley disputes that any features of equitable estoppel are established on the evidence.
There is no express representation in relation to either the enforceability of the oral agreement or an undertaking not to enforce the deed contained at pars 33 and 34 of John Quigley's affidavit. There may be an unreality in the proposition that Mr Quigley Snr should be taken as making an implied representation as to the legal enforceability of the 'new proposal' to his son, a qualified and practising solicitor. This is the representation contended for by John Quigley. There is no express promise not to enforce the deed. There is no reference to the deed at all.
John Quigley gives further details of discussions with his father in later years. After the National Australia Bank issued default notice in 1999 or 2000, and Mr Quigley Snr took steps to restore a caveat to protect his interests, John Quigley deposes to a further discussion with his father.
My father and I had a discussion about the caveat lodged on 20 April 2000 in words to the following effect:
Me:You've lodged a new caveat. The supporting documentation for your caveat is contrary to our agreement.
My father:I didn't know that. I just went to see Peter's lawyer and asked to have a caveat put back on to protect my right to live there for life to protect me as much as possible from the bank.
Me:Yeah, Peter's lawyer has sought to reinstate that I pay Peter 50% of the value of Bournemouth Parade at the time of your death. This goes back on the agreement we struck in 1995 when I had Darryl Wookey buy an interest in the property.
My father:I don't want you paying 50% of the Bournemouth Parade. I want it as per our agreement whereupon my death you pay Peter 50% of the value of the improvements that I have paid for on the Mettam Street Property.
Me:That's not what the new caveat says.
My father:I just went back and saw Peter's lawyer and asked him to protect my right to live here during my life. I didn't ask that you pay Peter 50% of the value of Bournemouth Parade.
Me:I can't possibly afford at the end of your life to pay Peter 50% of Bournemouth Parade. In these circumstances if you want to go back on the deal, I'll just have to stop paying the mortgage, sell and reinstate you in a duplex.
My father:I just want to keep living in this house amongst my family and at the end of my life for you to pay Peter 50% of the improvements that I paid for.
This evidence, together with the terms of the caveat in 2000, raises a number of issues. It does not throw any light upon whether an implied representation was made orally in 1995. It may be that Mr Quigley Snr was a realist, and at that time accepted what John Quigley had to say about his financial affairs, and did not wish to move away from his family, upon whom he was clearly becoming more dependent. It shows clearly John Quigley's assessment of the relativities of 50% of Bournemouth Parade as against 50% of the improvements on 6 Mettam Street. It would also support an argument that Mr Quigley Snr continued to believe in 2000 that he had right to live in the house, a right that might be protected by caveat.
However, Mr Quigley Snr repeatedly said that he would be happy if at the end of his life John Quigley were to pay Peter Quigley one half of the value of the improvements at the date of his death. That statement is of course inconsistent with the terms of the deed, and might arguably amount to an implied representation that the father would not insist upon compliance with cl 2.4 of the deed.
A defence on the basis of estoppel requires:
(1)a representation that the deed was not to be enforced either at all or in relation to the obligation in cl 2.4;
(2)that John Quigley relied upon (1) to his detriment; and
(3)that it would be unconscionable now for Peter Quigley, as executor and in his personal capacity, to insist upon the enforcement of the deed.
John Quigley argues to his detriment in a number of ways:
(1)he paid the mortgage;
(2)he transferred an interest in the property to and re-purchased from Ms Wookey; and
(3)he paid for the deposit upon his father entering the Anchorage Aged Care facility and other expenses.
In answer to each of those matters, it has been said that:
1.John Quigley was obliged to pay the mortgage to whichever bank held it at the relevant time, and as the owner of the property he also would get the benefit of any capital appreciation in the property.
2.By the transfer to Ms Wookey, he accessed equity in the property as she paid him for the interest. Upon the re‑transfer of the interest the detriment ceased, he repaid her by increasing the mortgage against the property.
3.The payment of $25,000 to the nursing home was a detriment as John Quigley would be at the time $25,000 the poorer because of it. However, there is evidence of a substantial refund following Mr Quigley Snr's death and whilst Mr Quigley Snr resided in the Anchorage Aged Care facility rent was paid to John Quigley for use and occupation of 6 Mettam Street.

Conclusion

Considering all of the above, I am not satisfied that there is no defence to this action. I consider that it is arguable that it is unconscionable for the estate to resile from the 'representation' of Mr Quigley Snr in relation to the quantum of the payment to Peter Quigley after his death.
Although there is an evidential burden upon a party resisting summary judgment to show cause that there is an issue to be tried, the overall burden of persuasion remains upon the applicant for summary judgment. John Quigley does not have to positively establish a defence to show an issue to be tried.
My reasons for this conclusion relate principally to the issue of estoppel. In so far as detriment is concerned, the issue of the status of the obligations of John Quigley to pay the mortgage and outgoings may relate also to the question of consideration.
Firstly, I am not satisfied that the existence of a relevant representation has been excluded. The determination of this depends upon a judgment and interpretation of evidence in context of the events.
Secondly, a finding as to whether John Quigley ultimately relied upon his father's assertions requires a judgment on evidence which is under challenge. He asserts he did so rely.
Thirdly, to secure his father in 6 Mettam Street John Quigley paid the mortgage and made other payments both towards the property and towards his father's maintenance. It can be deduced from the narrative that his financial affairs were at times complex, due to his matrimonial situation, his legal practice and changes in his family's living arrangements. There is no evidence of his detailed financial position at any relevant time or the value of the improvements on 6 Mettam Street. There are assertions as to what John Quigley would have done, which suggest a calculation he had made. But that is but one aspect of the matter.
In so far as John Quigley was obliged to pay the mortgage, the obvious legal obligation was to the bank. The deed does not expressly impose an obligation on John Quigley to his father to pay the mortgage and outgoings. It has been argued that this was required by implication to provide the life interest and that breach would result in damages as well as other consequences. Whether an obligation should be implied is open to debate. If there was no absolute obligation under the deed to make the payments, but only the consequences of breach, then the further undertaking to go on making these payments in the circumstances, rather than disrupt his father's living arrangements, may have been valuable at the time and now be a calculable financial detriment to John Quigley. This question is not an issue I am able to resolve at this stage.
Accordingly, the application is dismissed and John Quigley has leave to defend the action.