Ransley v Ransley - [2023] TASSC 1

[2023] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Ransley v Ransley [2023] TASSC 1

PARTIES:  RANSLEY, Christopher Carson
  RANSLEY, Paula June
  v
  RANSLEY, Steven Ernest

FILE NO:  3187/2019
DELIVERED ON:  20 February 2023
DELIVERED AT:  Hobart
HEARING DATES:  20, 21, 23 September 2022
JUDGMENT OF:  Blow CJ
CATCHWORDS:

Contracts – General contractual principles – Statute of Frauds, Section 4 – Non-compliance with statute – Doctrine of part performance – What acts constitutes part performance – Acts not constituting part performance – Fortnightly payments to registered proprietors, payments of rates and maintenance of property – Proprietor asserting agreement to rent property – Acts not unequivocally referrable to agreement for purchase.
Conveyancing and Law of Property Act 1884 (Tas), s 36

Maddison v Alderson (1883) 8 App Cas 467; Maiden v Maiden (1909) 7 CLR 727; McBride v Sandland (1918) 25 CLR 69; Pipikos v Trayans [2018] HCA 39, 265 CLR 522, followed.

Aust Dig Contracts [78]
Equity – 1
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, distinguished.
Aust Dig Equity [1110]
Estoppel – Estoppel by conduct – Proprietary Estoppel - Promise to transfer title to purchasers upon them reimbursing vendors for purchase price, loan interest and expenses – Representees acted to detriment by foregoing opportunity to purchase house from Director of Housing over time – Appropriate equitable relief.

Crabb v Arun District Council [1976] 1 Ch 179; Commonwealth v Verwayen (1990) 170 CLR 394; Public Trustee v Wadley (1997) 7 Tas R 35; Giumelli v Giumelli [1999] HCA 10, 196 CLR 101, referred to.

Aust Dig Estoppel [1048]

REPRESENTATION:

Counsel:
             Plaintiffs:  C Schokman, C Street
             Defendant:  C Groves, E J Burrows-Cheng
Solicitors:
             Plaintiffs:  Ogilvie Jennings
             Defendant:  Dobson, Mitchell & Allport
Judgment Number:  [2023] TASSC 1
Number of paragraphs:  76

Serial No 1/2023
File No 3187/2019

CHRISTOPHER CARSON RANSLEY and PAULA JUNE RANSLEY v
STEVEN ERNEST RANSLEY

REASONS FOR JUDGMENT BLOW CJ

20 February 2023

In 1996 the defendant, Steven Ransley, and his wife Rosalie bought a property at 154 Eldon Road, Colebrook for $35,000 as joint tenants. Some weeks later the plaintiffs, Christopher Ransley and Paula Ransley, moved into the house on that property. They have lived there ever since. Christopher Ransley is one of the defendant's brothers. From September 1996 until September 2021 the plaintiffs made fortnightly payments in respect of the property to the defendant and his wife. She died in 2010. The plaintiffs contend that they made those payments pursuant to an oral agreement by which the defendant promised that he would transfer the title to the property to them once the total of their payments reached the sum of $35,000 plus the interest on a loan that he obtained to fund the purchase, plus his expenses relating to the purchase. This is an action for specific performance of that alleged agreement. The plaintiffs contend that they have paid all that they promised to pay, and more. The defendant denies that there was any such agreement. He contends that it was agreed that the plaintiffs would rent the property from him and his wife.
In the alternative, the plaintiffs are seeking orders for the transfer of the property to them on the basis of the equitable doctrine of proprietary estoppel. They contend that the defendant allowed and induced them to believe that, once they had paid his purchase costs, they would be the beneficial owners of the property, that they were induced to act to their detriment in reliance on that conduct, and that it would be unconscionable for the defendant not to transfer the property to them.

Credibility of the parties

The central question in this case is whether or not the defendant orally agreed or promised to transfer the title to the property to the plaintiffs once they had paid him $35,000 plus interest and expenses. In order to determine whether that has been established on the balance of probabilities, it is necessary to evaluate the credibility of the parties. Each plaintiff gave evidence to the effect that there was an oral agreement as alleged. The defendant gave evidence that there was not. The evidence of either the plaintiffs or the defendant must be incorrect. The incorrectness could be due to either dishonesty or faulty recollections of what was agreed upon or not agreed upon over 26 years ago. I have come to the conclusion that the evidence of each plaintiff and the defendant is, to some degree, unreliable.
Each of the plaintiffs gave evidence to the following effect. They were living at Gagebrook in a Housing Department home. The defendant approached them with the idea that he would buy a property in the country for them to live in. They said they were interested. He subsequently found the property at 154 Eldon Road and suggested that they look at it with him. They went and looked at it. They agreed that he would buy it and that they would pay him the purchase money, interest and expenses by instalments, and that he would transfer it to them when paid in full. He then purchased the property and they subsequently moved in.
The defendant gave evidence of a different sequence of events. His evidence was to the following effect. He and his wife were living at Rhyndaston. He wanted to move to a better house. He approached the owner of 154 Eldon Road, whom he knew by the name Tanya Housego. He told her that he would be interested in buying the property. He and his wife agreed to buy it for $35,000. A contract was signed. His wife changed her mind about moving. They decided to keep the property as an investment property. The vendor continued to live there for a few weeks after settlement of the purchase. The defendant and his wife initially offered to let the property to their daughter Maree Ransley and her partner Darren Goss, but they declined the offer. They then offered to let the property to Lawrence Wilkin, the defendant's step-brother. Mr Wilkin also declined the offer. They then offered to let it to the plaintiffs. The plaintiffs inspected the property and agreed to rent it. It was after the settlement of the purchase that that was agreed to.
The defendant's version of events was corroborated by six witnesses – his daughter Maree, her partner Darren Goss, his sons Michael, Aaron and Shawn, and the vendor, Tanya Dare (nee Housego). There was unchallenged evidence from a number of witnesses to the effect that the defendant and his wife were in the habit of discussing arrangements in relation to the property in the presence of their children.
The evidence suggests that the first of the plaintiffs' fortnightly payments was about four weeks after settlement of the purchase. There is documentary evidence to establish the following sequence of events:
·The transfer by Ms Dare to the defendant and his wife is dated 7 August 1996. It seems likely that it was dated before the settlement of the transaction.
·The purchase was financed by a mortgage loan from Island State Credit Union Ltd. The mortgage to that credit union is dated 16 August 1996. The date from which mortgage interest was payable pursuant to the mortgage has been filled in by hand, and that date is also 16 August 1996.
·The transfer bears an endorsement showing that the stamp duty thereon was assessed on 29 August 1996.
·The transfer and the mortgage both bear endorsements showing that the stamp duty thereon was paid on 3 September 1996.
·The transfer and the mortgage were both registered under the Land Titles Act 1980 on 6 September 1996.
·The plaintiffs' first receipt for a fortnightly payment is dated 12 September 1996. The authenticity of that first receipt is disputed. However the second receipt is dated 27 September 1996. There is no dispute as to the authenticity of that receipt or any subsequent receipt.
I am satisfied that the purchase was settled on or about 16 August 1996, after which the transfer and the mortgage were lodged for stamping and registration. I am satisfied that the defendant and his wife did not purchase the property intending to let it to the plaintiffs, and that they offered to let it first to their daughter Maree and her partner Darren Goss, and then to Lawrence Wilkin, before making an arrangement for the plaintiffs to occupy it.
Significant parts of each plaintiff's evidence were therefore incorrect. As a result their evidence must be approached with caution. Their memories may well have become inaccurate over the intervening 26 years. The inaccuracy of their evidence as to the sequence of events does not compel a conclusion that there was no oral agreement or promise that they would acquire title to the property.
Both plaintiffs also gave unsatisfactory evidence as to events that occurred in 2018 in relation to the payment of the council rates on the property. The two brothers shared a post office box at Campania. Each year the council would mail the rate notice for 154 Eldon Road to the defendant and his wife, one of them would put it in the shared post office box, one of the plaintiffs would collect it, and they would pay the rates at the office of the Southern Midlands Council in Oatlands. The shared box was PO Box 59. At some stage the plaintiffs got a box of their own at the same post office, PO Box 193. The evidence establishes that in 2018 someone went to the council and changed the address for the Eldon Road rate notice to PO Box 193. The defendant had a number of other properties in the same municipality. The council sent all of his rate notices for 2018 to PO Box 193. Someone changed the addresses on the other rate notices to PO Box 59, and put them in an envelope in that box. The defendant went to the council and had the addresses for all his rate notices changed back to PO Box 59. Christopher Ransley was cross-examined about these events. At first he denied going to the council to change the address that the rates notices were sent to, but he was shown his signature on a document produced by the council, and then said that he might have done that. Then he said that he did not know what he was signing. Paula Ransley gave evidence that her husband has never held a driver's licence, and that she did all the driving when he needed to go somewhere. She conceded that she would have driven him if he had gone to the council office, but denied driving him to the council office in July 2018 when the address was changed. She said that her husband did not go to the council chambers by himself and that she did not go with him to make the change. I am satisfied that Christopher Ransley requested that the address for the Eldon Road rates notice be changed to PO Box 193 in July 2018, and that the evidence given by each plaintiff to the contrary was incorrect.
Christopher Ransley also gave unsatisfactory evidence about a falling out between his family and the defendant's family. Under cross-examination he volunteered that he did not know why he and the defendant did not get along any more. However, there was a great deal of evidence that quite clearly established that there were arguments between the two brothers for many years as to whether the arrangement about the Eldon Road property was one for rental or for purchase by instalments. Christopher Ransley must have understood that that dispute was the explanation for the falling out. However, when asked whether he and the defendant did not get along any more, he volunteered that he did not know why. That seems to me to have been an impulsive assertion by a witness who was unsophisticated and not at all clever. It is relevant to the assessment of his credibility, but I do not consider it very significant.
Some of the defendant's evidence does not withstand scrutiny either. The evidence clearly established that the plaintiffs' fortnightly payments were reduced from $200 to $150 with effect from 25 June 1998. The evidence also clearly establishes that the plaintiffs paid the council rates on the property for over 20 years. There were inconsistencies in the defendant's evidence as to the making of arrangements as to the reduced fortnightly payments and the payment of rates. In the course of his oral evidence he said things to the following effect:
·First up, the rent was supposed to be $100 per week. The plaintiffs said they could not afford that. The defendant said, "Well how's $75 a week, and youse pay the rates and taxes?" That was agreed to.
·He was not aware that the plaintiffs kept paying $200 per fortnight until June 1998. His wife did all that.
·He remembered a conversation when the plaintiffs came to him and said that they could not afford to pay $200. The conversation was at his house. He and his wife agreed to the reduction. They had been paying $200 plus the rates.
The defendant contradicted himself as to whether council rates were paid by the plaintiffs from the beginning or not, and as to whether or not he was involved in discussions about the reduction of the fortnightly payments. It would seem that his memory was somewhat unreliable, that to some extent he was making up his answers as he went along, and that he was not keeping track of the answers he had given. His evidence must also be approached with caution.

The contractual discussions

The first plaintiff, Christopher Ransley ("Christopher") is not a well-educated man. When asked what the defendant had said in the original discussion about the property he responded, "He said he'd buy a house, we pay him back, pay the loan back." He said that discussion was at his previous residence at Gagebrook. He gave evidence that those present at that discussion included his wife Paula, the defendant ("Steven"), his wife Rosalie, their children, and Lawrence Wilkin. He gave evidence of a second discussion at Steven's home at Rhyndaston and of an inspection of the Eldon Road house in the presence of Tanya Housego. He said that the next time he had a discussion with Steven, Steven came down and told him that he could move in, and that they shook hands on that deal. His said that Steven said that the all up price would be $40,000 or $50,000 "with the lawyers and that", and that payments of $200 were mentioned.
The second plaintiff, Paula Ransley ("Paula"), gave evidence to the following effect. Steven visited at Gagebrook and said that he could get a place up at Colebrook and they could pay him back. He said he had to get a loan to pay for it. The next discussion was at Steven's house. They agreed to him getting them a house and them paying him back. They, Steven, Rosalie and all the children of both couples were present. Steven said, "Do we have a deal?" Then they shook on it. They shook hands at both Gagebrook and Rhyndaston. Payments of $200 were agreed to.
Dean Ransley, the brother of Christopher and Steven, gave evidence for the plaintiffs. He said that at Gagebrook he heard Christopher and Steven talking. He heard that Steven was buying the house for Chris, "and Chris was to pay it off like he was paying his own loan off and the house was going to be Chris's house". He said that Christopher, Paula, Steven, his wife, and all the children of both couples were there.
The plaintiffs' son Luke Ransley gave evidence of witnessing handshakes and conversations. He was born on 25 April 1982. He would therefore have been 16 years old when the arrangements were made. His evidence as to the conversations lacked detail. He said, "…the arrangement was to buy the house off my uncle basically."
The plaintiffs called a number of other witnesses who gave evidence as to discussions after the arrangements concerning the property had been made. None of those other witnesses gave evidence of being present at any time when the arrangements were agreed to.
The defendant gave evidence that he had a conversation with his family, including all the children, about offering the property to the plaintiffs for them to rent it. He said that all the children agreed, that he went to the plaintiffs' place and made that offer, that the plaintiffs went and looked at the property with him, and that they then agreed to rent it. He said that his wife and the plaintiffs' son Luke were there at that time.
The defendant called eight witnesses but only one of them, his son Shawn, gave evidence of being present when the arrangements with the plaintiffs were agreed to by them. In substance he said that there were a number of discussions at the defendant's home at Rhyndaston at which an offer was made for the plaintiffs to get out of Gagebrook and come and rent up at Colebrook.

Post-contractual discussions

The arrangement asserted by the plaintiffs whereby they would occupy the property and pay instalments of purchase money was referred to during the trial as a "rent-buy" or "rent to buy" arrangement. The defendant gave evidence that such an arrangement was discussed but never agreed to by him and his wife. The defendant's children Maree, Aaron and Shawn, and his son Michael's former partner Amanda Jacobson, each gave evidence of hearing inconclusive discussions between the plaintiffs and the defendant about such an arrangement.
A number of witnesses gave evidence about a conversation at the home of Christopher and Steven Ransley's mother shortly after the plaintiffs moved into the property. Their evidence can be summarised as follows:
·     Paula Ransley was asked what happened on that occasion. She replied, "Well, his mother knew that Steven was going to buy us a place and we pay him back, and then she turned around and she said, 'You're not going to do him, are you?' She said to Steven. … he said, 'No, don't be silly.'"
·     Dean Ransley, a brother of Christopher and Steven, when asked about his recollection, said, "I recall my mum saying to Steven and Chris, both, that if they're going to buy – that if they are going to do it and buy the property that way and do it that way, that they should have done it through a lawyer. … Steven jumped up and said 'What, don't you effing well' I don’t want to say the word, sorry, but 'Don’t you effing well trust me?' Like, buying the house for him." He said that this conversation was at or about the time the plaintiffs moved to Colebrook. Under cross-examination it was put to him that Steven did not swear at their mother but he responded, "No, it happened. I saw my mother that day yelled down and she cringed like a little dog because he – because she yelled at him [sic] or got yelled at by Steven."
·     The plaintiffs' son Luke gave evidence that he was present when his father, his uncle Steven, his grandmother and others discussed the arrangements. His father, Christopher, was known in the family as "Mouse". He gave evidence that his grandmother said, "Don’t let Mouse down", and that his uncle Steven "said he won't".
·     Jennifer Kingston, a sister of Christopher and Steven Ransley, gave evidence that she was present when they were talking about Steven "buying the house for Mouse to buy back – pay rent and buy it back". She said, "Both Steven and Chris was talking about it, and Mum turned around and said, 'Don't do it, Chris' – Well, she called him Mouse, 'Don't do it, Mouse.' And I remember Steven looking at Mum in the face underneath of his hat and said 'What, do you think I'm going to take my own brother down?'"
·     Steven Ransley gave evidence that there was a conversation with the plaintiffs about a "rent to buy". When asked what he said about a rent to buy, he replied, "Well, we'd look into it down the track and then I put – run it past my Mum and Mum said it was a bad idea, so it never went no further." Under cross-examination he said that he thought his two sisters and Chris would have been there as well as his mother and himself. He said that Dean possibly could have been there. He said that Dean's evidence about him swearing at his mother and his mother cowering in the corner was "Total lies".

Susan Ransley gave evidence about another conversation about the parties not using a lawyer. She is the widow of Gary Ransley, a brother of Christopher and Steven. Her evidence was to the following effect. She was visiting the plaintiffs when they were packing up to move to Colebrook. The defendant came into the house. He and Christopher were discussing the arrangements. It was said that the plaintiffs were buying the house. Christopher said, "I wouldn't be moving into another rental, you know. This'll be our last move because we're buying it." Her husband Gary then said that it should be going through a lawyer. He said, "In the old days you could just go by a handshake, but in this day and age it should be on paper and going through a lawyer." "Steven then got a bit irate and said something to the effect of, 'Do you think I'm going to rip my brother off?'"
A number of witnesses gave evidence about a series of arguments and physical fights between Christopher and Steven Ransley at Steven's home in Rhyndaston during the years between the plaintiffs occupying the property in 1996 and the death of Rosalie Ransley in 2010. On many occasions they argued about whether or not they had a "rent to buy" agreement.

Receipts

Rosalie Ransley, the defendant's wife, provided the plaintiffs with handwritten receipts for their fortnightly payments from September 1996 until 28 August 2009. Ordinarily when a tenant pays rent to a landlord and gets a receipt, one would expect the receipt to describe the payment as "rent", and probably to show the period to which the rental payment related. None of the receipts provided by Rosalie Ransley bore the word "rent" or details of a particular period to which a payment related.
As I have said, there is a dispute about the authenticity of the first receipt. It is dated "12.9.96". It shows that $200 was received from "Chris Ransley". After the printed words "BEING FOR", someone has written "PAYMENT ON BUYING HOUSE." After the printed word "PER", someone has written "FORTNIGHT". That is the only receipt in the plaintiffs' collection of receipts on which the word "buying" appears.
Paula Ransley gave evidence that she remembered making the first payment and that "Rosie" wrote out the receipt for her and said, "You'll frame this one, won't you Paula?" However, the defendant gave evidence that that receipt was not in his wife's handwriting. That receipt was the first of many that the plaintiffs kept in an exercise book. Each was attached with adhesive tape. They were in chronological order from September 1996 to August 2009. The defendant gave evidence that every receipt except the first was in his wife's handwriting. His daughter Maree Ransley also gave evidence that the first receipt was not in her mother's handwriting, but that all the others were in her handwriting. All of the receipts were unsigned.
The receipts after the first, from 27 September 1996 to 23 April 1998, came from a printed receipt book with individual numbers printed in red in the top right corner. The disputed receipt comes from either the same receipt book or an identical one. It bears the number 55. The subsequent receipts are in numerical order and bear the numbers from 60 to 100, with some omissions. That is to say, the form and number of the first receipt are consistent with it being an authentic receipt from Rosalie Ransley's receipt book.
On the receipts after the first, Rosalie Ransley has written "PAYMENT ON HOUSE", then "PAYMENT FOR HOUSE", then "PAYMENT OF HOUSE" twice, and then "HOUSE PAYMENT" many times from 1996 until 2009.
No expert evidence was given at the trial about the handwriting on the first receipt or anything else. The writing on the first receipt is not conspicuously different from the writing on the other receipts. It can be seen that someone has gone over all the handwriting on the first receipt with a black pen, making it darker and in places creating multiple pen strokes. Only one of the other receipts shows any sign of that having been done. There is no evidence as to why that was done in relation to the first receipt. However, in the light of the evidence that Rosalie Ransley suggested that it might be framed, it may be that she or one of the plaintiffs deliberately made the writing on the receipt heavier and darker because of its perceived importance.
If the first receipt is not an authentic document, it must be a forgery. There can be no innocent explanation for its existence or for its presence in the series of receipts taped into the plaintiff's exercise book. I am not satisfied that it is a forgery. My impression of the plaintiffs is that neither of them would have been sufficiently cunning or audacious to produce, plant and rely upon a forged receipt. I think it is infinitely more likely that the handwriting on that receipt is that of Rosalie Ransley. It may well be that the defendant and his daughter simply cannot accept that she wrote something that evidences an agreement for the plaintiffs to buy the house.
The fortnightly receipts, particularly the first one, support the plaintiffs' assertions that there was an arrangement for the property to become theirs. In particular, if the arrangement was simply for the payment of rent, one would expect a record to have been kept as to the date to which rent stood paid from time to time. The description of payments as house payments tends to imply that there were payments related to the acquisition of the house rather than payments of rent. The fact that the plaintiffs systematically retained every fortnightly receipt from 1996 onwards suggests that they expected one day to have to calculate the total amount that they had paid. Tenants do not normally retain their rent receipts decade after decade.

The plaintiffs' decision to leave Gagebrook

As I have said, both plaintiffs gave evidence that they were living in a Housing Department home at Gagebrook before they moved to the Eldon Road property. Both gave evidence that the Housing Department offered to sell the Gagebrook property to them for $23,000. That evidence was unchallenged and uncontradicted. Before they moved to Colebrook the plaintiffs had no significant savings and no income other than social security benefits. However, each of them gave evidence to the effect that the Housing Department was willing to enter into a contract for the payment of the purchase price of $23,000 by instalments. Christopher Ransley gave evidence to the effect that he could buy the house through the finance of the Housing Department. Paula Ransley said that they could have paid for the house at Gagebrook out of their pension, the same way that they were paying the defendant.
The plaintiffs were concerned about the upbringing of their son Luke. He was 14 years old at the time of their move. They firmly believed that Colebrook would provide a better environment for his adolescence than Gagebrook. They also were attracted to the idea of living in the country. However it was in their financial interests to buy rather than rent, and buying their Housing Department home was an option open to them. There are good reasons to think that they would not have given up the opportunity to own their own home if only a rental arrangement had been available to them at Colebrook. Christopher Ransley gave evidence that if there had not been an agreement that he "get the deeds" when he had "finished paying the loan back" to the defendant, he would have stayed at Gagebrook. Paula Ransley gave evidence that she would have stayed at Gagebrook if she had understood that she and her husband were not buying the Colebrook property. The evidence of the plaintiffs to that effect was not challenged in cross-examination.
Counsel for the defendant submitted that the evidence did not establish that the offer from the Housing Department was made before the plaintiffs move to Colebrook, nor that they had the financial capacity to take up the opportunity to purchase the Gagebrook property. As he pointed out, there was no evidence as to the terms on which they might have purchased that property, nor of their means, apart from the fact that they were receiving Centrelink benefits. He relied on Mortgage Acceptance Nominees Ltd v Australian Thoroughbred Finance Pty Ltd (1996) 69 SASR 302 in which the Full Court of the Supreme Court of South Australia held, by majority, that a claimant had failed to establish that he had suffered a detriment as a result of reliance upon a representation.
In that case Doyle CJ, who was in the majority, said, at 308:
"I realise that, to do justice, the court at times will act upon evidence which may be somewhat inconclusive or sparse, but the court must act with justice to both parties, and there is a limit to speculation. In relation to detriment I consider that in the present case the detriment is almost entirely dependent upon speculation, as distinct from being supported by insubstantial evidence which might nevertheless support the finding made by the trial judge…".
That was a very different case from this one. The manager of a creditor's loss recovery portfolio contacted a guarantor about a debt that was in the vicinity of $100,000. He had discovered that the guarantor's debts exceeded his assets by more than $700,000. He told the guarantor that the debt would be written off. Some years later the creditor sued the guarantor. The guarantor contended that he had relied on the representation that the debt would be written off by not seeking to negotiate a compromise. The majority in the Full Court held that that defence was based on speculation, not evidence, and that there was no evidence of detriment. It was a promissory estoppel case, not a proprietary estoppel case, but nothing turns on that.
In my view this is a case in which it is just to rely upon evidence that, in the words of Doyle CJ, is "somewhat inconclusive or sparse". First of all, it is clear that under the Homes Act 1935, which has since been repealed, the Director of Housing had the power to sell Housing Department homes to their occupants by contracts that provided for payment of the purchase money by instalments. There is no reason to think that any Director would have offered or proposed such a contract to the plaintiffs after they vacated the Gagebrook property. I am therefore satisfied that an opportunity to take advantage of such an arrangement was presented to them before they vacated that property. They both gave evidence to the effect that they would have entered into such an arrangement if their acquisition of the Colebrook property had not been promised to them. It is implicit in what they each said that they had the means to acquire the Gagebrook property from the Director of Housing. Neither of the plaintiffs was cross-examined as to details of the price or terms upon which they could have acquired the Gagebrook property, details of their finances in 1996, or their capacity to make whatever payments the Director of Housing required. Significantly, it was not put to either of them that their means were insufficient for them to have made the payments that the Housing Department required towards the $23,0000 purchase price. That being the state of the evidence, I am satisfied that they had the opportunity that they spoke of in their evidence. I am satisfied that they had an opportunity to purchase the Gagebrook property by making payments out of their pensions.

Improvements to the property

The evidence clearly establishes that, after moving to the Colebrook property, the plaintiffs made substantial improvements to it at their own expense, without seeking any sort of permission from the defendant or his wife, or even telling them about any improvements in advance. That evidence tends to support their assertion that the arrangement was for them to acquire the property, rather than just renting it.
At various times, the plaintiffs had new electrical wiring installed, as well as new water tanks and a new power pole. They rectified problems in relation to a front door that was unstable in times of heavy wind, and a door that would not open. They built extensions to the house and its veranda. They installed a new front gate, a wood heater, a new hot water cylinder, and a water pump under the house. They got people with machinery to rectify problems with the septic tank.
The defendant gave evidence to the effect that in 1996 it was agreed that the plaintiffs would keep up the maintenance of the property, and that they were welcome to do anything to the property that they wished, and that he was aware of the improvements as a result of travelling past the property from time to time. The evidence that the plaintiffs rented the property on the basis that they were welcome to do anything to the property that they wished is certainty not implausible. The plaintiffs' expenditure on the property is not inconsistent with a long-term tenancy arrangement. However the making of substantial improvements without any prior discussion does tend to give support to the evidence that there had been an oral agreement for the sale of the property to the plaintiffs.

Rosalie Ransley's attitude to the plaintiffs

A number of witnesses gave evidence to the effect that, following the plaintiffs' move to Colebrook, they routinely visited the defendant and his wife for barbeques at which, after some drinking, arguments and physical fights developed between Christopher Ransley and the defendant.
The defendant's son, Aaron Ransley, gave evidence that his mother did not want the plaintiffs to buy the house and that, after they had visited and left, she used to say, "Over my dead body" or "Over my fucking dead body". He went on to say that when he was about 15 years old he started to understand that his mother did not even want them in the house at all, but wanted them out. He turned 15 in 2001. He said that by the time of his mother's death in 2010 there was no relationship between his family and the plaintiffs' family.
Mark Wiggins, who had lived with the defendant and his wife from about 1999 to 2001, gave evidence to the effect that she said on a couple of occasions at the times of arguments about the property, "It's not going to be theirs. Over my dead body."
Amanda Jacobson, the former partner of the defendant's son Michael, gave evidence about arguments involving the plaintiffs, the defendant and his wife. She said that Rosalie Ransley never "wanted to do a rent to buy". She said that, if it was not for the defendant, Rosalie would have evicted the plaintiffs many years sooner.
The defendant's son Shawn Ransley gave evidence that there were arguments between his parents because his mother wanted the plaintiffs out of the house and his father was refusing to kick them out. He said that his mother got knocked to the ground once in an argument between Christopher Ransley and his father, after which she swore and declared that "Chris was out", but that his father did not follow through with that.
It is quite clear from that body of evidence that during the final years of her life Rosalie Ransley, the co-owner of the Eldon Road property, did not want the plaintiffs ever to acquire the property, and would have liked the defendant to have evicted them. However it does not necessarily follow that back in 1996 she was not agreeable to her husband promising the plaintiffs that the property would be transferred to them after reimbursing the purchase price, loan interest and expenses, and entering into an agreement with them to that effect on behalf of himself and herself.

The defendant's will

The defendant made a will on 18 February 2010, a couple of months before his wife's death. By that will he left the whole of his estate to his wife provided that she survived him. He went on to make a series of gifts that would take effect if she did not survive him. Those substitutional gifts included a gift of a life estate in the Eldon Road property to the plaintiffs, with a gift in remainder to some of his children. The relevant clauses read as follows:
"I give a life interest in the property I own at 2 [sic] Eldon Road, Colebrook to my trustee on trust to permit my brother Christopher Carson Ransley and his defacto partner Paula Ransley to reside therein with them to keep the property in good repair and insuring my interest in the property in the name of my trustee in the office and in the sum approved by them, paying rates and taxes levied on the property and keeping the property in good repair, having regard to the condition at my death.
Upon the death of the last survivor of Christopher Caron Ransley and Paula Ransley or when the last of them leaves the property at 2 Eldon Road, Colebrook, the property is to be shared equally between those of Maree Gaye Ransley, Michael Patrick Ransley and Aaron Christopher Ransley who survive me and if more than one as tenants in common in equal shares."
At the time of the trial that will had not been revoked. There is no evidence as to the existence or contents of any prior will. The defendant gave evidence to the effect that he had made provision for the plaintiffs in his will because he felt responsible for them, and that he considered that the property was his. Under cross-examination he said that it was his intention that the plaintiffs could live on the property until they died without paying rent. He agreed that relations were still pretty good between him and the plaintiffs at that time, but that is quite inconsistent with the evidence about arguments, fights and the lack of contact after the death of Rosalie.
The evidence as to the will does not help either the plaintiffs or the defendant. It is equally consistent with the defendant having made and repudiated an oral agreement for the sale of the property and with him having made no such agreement. It was not put to him that he made provision for the plaintiffs in his will because of any promise ever made to them.

Other evidence

The defendant gave evidence that no rental income from the Eldon Road property was ever disclosed to Centrelink, from whom he apparently received means-tested benefits, or the Australian Taxation Office. His explanation was that his wife was in charge of such things. That was no explanation in relation to the years after death. If the plaintiffs' payments were payments of purchase money, they constituted capital payments that did not have to be disclosed to Centrelink or the ATO. If they constituted payments of rent, they were taxable, and there would have been obligations to disclose them to Centrelink during any periods when that agency was paying benefits to the defendant. However I do not regard the non-disclosure of such payments as powerful evidence in support of the plaintiffs' case. Non-disclosure could well have been the result of obligations of disclosure being overlooked, welfare fraud, and/or tax evasion. Many Australians getting rent in cash from a family member might give in to a temptation not to disclose income to the relevant authorities.
At all material times the defendant and his wife maintained an insurance policy in respect of the Eldon Road property. Whether there was an oral agreement for sale or not, they had an insurable interest in the property as its owners. It was in their interests to keep the property insured, even if their equity in the property was dwindling over time as the result of payments by the plaintiffs. If there had been an oral agreement for sale, prudent vendors would have tried to negotiate an arrangement for the purchasers to bear the cost of insurance. Whilst it was common ground that, whatever the arrangement, the plaintiffs agreed from the start to pay the council rates, there is no evidence that insurance was discussed when arrangements about the property where being made in 1996. It may be that the parties gave no thought to insurance at that time. It may be that all parties accepted that the plaintiffs did not have the capacity to pay the insurance premiums over and above the fortnightly payments and the rates.

On 21 August 2019 the defendant signed a "notice to vacate" addressed to Christopher Ransley. It purported to require him to vacate the Eldon Road property. It was served by a process server later that day. Counsel for the defendant relied on the giving of that notice as evidence supporting the defendant's case. In my view it does not provide any such support. The giving of the notice is equally consistent with the absence of an oral agreement for the sale of the property and with the making and later repudiation of such an agreement.

An enforceable oral agreement for sale?

Section 36 of the Conveyancing and Law of Property Act 1884 reads as follows:
"(1) No action may be brought upon any contract for the sale or other disposition of land, or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorized.
(2) This section applies to contracts whenever made, and does not affect the law relating to part performance or sales by the Court."
There was no written agreement between the plaintiffs and the defendant and his wife. There is no memorandum or note of any such agreement in writing and signed by the defendant or his wife. The plaintiffs sought to rely on the equitable doctrine of part performance.
Section 36 is the modern Tasmanian equivalent of s 4 of the English Statute of Frauds 1677. In certain circumstances a court of equity will allow an oral contract to be enforced following part performance when one of the contracting parties has induced or allowed the other to alter that party's position on faith of the contract and it would be a fraud to set up legal unenforceability of the contract on which the contracting party has acted and expended money: Caton v Caton (1866) LR 1 ChApp 137 at 147–148. However part performance can only be relied upon when the claimant has done acts which unequivocally and in their own nature are referable to some such agreement as that alleged: Maddison v Alderson (1883) 8 App Cas 467 at 479. In that case a woman was induced by a man to serve as a housekeeper for years by an oral promise to leave her a life estate in his land, but the House of Lords held that her service did not meet that test.
That case has been followed by the High Court: Maiden v Maiden (1909) 7 CLR 727; McBride v Sandland (1918) 25 CLR 69; Pipikos v Trayans [2018] HCA 39 265 CLR 522.
On the plaintiffs' case they performed contractual promises by making fortnightly payments, paying rates, and maintaining the Eldon Road property. Nothing else that they did or refrained from doing could be characterised as involving the performance of a contractual promise. Making fortnightly payments, paying rates, and maintaining the property are equally consistent with an arrangement whereby they were to occupy the property as tenants or licensees. The asserted acts of part performance are not unequivocally referable to an agreement for the sale of the property. It follows that they are not entitled to equitable relief on the basis of part performance, and that their claim for specific performance of an oral contract must fail.

Proprietary estoppel

When an owner of an interest in property induces another party to act to his or her detriment by making representations leading that party to believe that he or she will acquire an interest in the property, equity may grant relief in a form moulded to fit the particular case: Dillwyn v Llewelyn (1862) 4 De GF & J 517, 45 ER 1285; Ramsden v Dyson (1866) LR 1 HL 129; Giumelli v Giumelli [1999] HCA 10, 196 CLR 101 at [5]–[6].
The plaintiffs contend that this is an appropriate case for the granting of equitable relief on the basis of the doctrine of proprietary estoppel. Their contentions can be summarised as follows:
·In 1996 the defendant represented to them that he would transfer the Eldon Road property to them if they maintained the property and made fortnightly payments sufficient to cover the purchase price of $35,000, all interest paid by him and his wife on monies borrowed for the purpose of purchasing the property, and all expenses paid by him and his wife in relation to the purchase of the property.
·They believed that the defendant and his wife would transfer the property to them if they maintained it and made all such payments.
·In reliance upon the defendant's representation, they acted to their detriment by (a) foregoing the opportunity to purchase their Housing Department home at Gagebrook; (b) making fortnightly payments sufficient to cover the purchase price, all loan interest, and all expenses relating to the purchase; (c) maintaining the property; and (d) making improvements to the property.
·As a result, it is unconscionable for the defendant to refuse to transfer the property to them.
·The only appropriate form of equitable relief is an order compelling the defendant to transfer the property to them and to compensate them for monies that they have paid him over and above the amount of the purchase price, interest and expenses.
This brings me to the central question in this case – whether or not the defendant promised the plaintiffs that he would transfer the property to them once they had paid the purchase price, interest and expenses. Counsel for the defendant argued that strict proof of any such promise was necessary before the plaintiffs could succeed. He relied on passages in the judgment of Hammerschlag J in John Holland Pty Limited v KelloggBrown & Root Pty Ltd [2015] NSWSC 451 at [94]–[95], where his Honour said the following:
"[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
[95] The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is."
The issue in that case was whether two businessmen had orally agreed to submit a dispute about the construction of a rail maintenance centre to curial determination instead of arbitration. My task is to determine whether I am satisfied on the balance of probabilities whether a particular promise was made by an agricultural labourer from Rhyndaston to some unsophisticated pensioners from Gagebrook. There is no reason why I should take such a strict approach as that suggested by Hammerschlag J in the passage quoted.
The plaintiffs' evidence as to what the defendant said to them was not ideally presented. Both gave evidence to the effect that he said he would transfer the house to them once they had paid him what it cost, making fortnightly payments. There was documentary evidence that the defendant and his wife paid $35,000 for the property, and that they financed the purchase proceeds of a mortgage loan for a greater sum. When asked what the defendant had said in the first relevant discussion, Christopher Ransley replied, "He said he'd buy a house, we pay him back, pay the loan back." He gave evidence that at one point they shook hands on the deal. When asked whether anything was said at that time about the price, he responded, "Yeah, he said forty thousand, probably cost fifty all up, with the lawyers and that." He later said that, before moving in, the defendant said that he had to pay the loan back. Paula Ransley mentioned in her evidence that the defendant had to get a loan to pay for the property, but made no mention of interest or expenses relating to the purchase. That was the extent of the evidence as to the details of the agreement asserted by the plaintiffs.
In my view, although that evidence is sparse, it is clear enough that, if the plaintiffs are to be believed, the defendant promised that he would transfer the property to them when they had fully reimbursed him and his wife for the purchase price, all interest paid on monies borrowed to fund the purchase, and all expenses, particularly solicitors' costs and disbursements.
I am satisfied on the balance of probabilities that such a promise was made to the plaintiffs by the defendant. I have treated the plaintiffs' evidence with caution because of the matters relating to their credibility that I have mentioned, particularly mistaken assertions that an arrangement for a house to be bought for them existed before the Colebrook property was purchased. I am very conscious of the substantial body of evidence contradicting their case. However, having rejected the suggestion that the first receipt is not an authentic document, I regard that receipt and that collection of subsequent receipts as very powerful evidence that the plaintiffs were promised in 1996 that they could acquire the property on the terms alleged. I accept their evidence that they would not have foregone the opportunity to purchase the Gagebrook property if they had not been promised the opportunity to acquire the Colebrook property. I am satisfied that they would not have built extensions to the house without an expectation that it would one day be theirs.
Despite my assessment of their credibility, I have no reason to doubt their evidence that, but for the promise made to them by the defendant, they would have accepted the opportunity made available to them to purchase the Gagebrook property for $23,000, payable by instalments. The price was an attractive one. It is highly unlikely that the perceived desirability of living in the country and bringing their son up there would have induced them not to take an opportunity to acquire ownership of their home. For these reasons I will make an order requiring the defendant to transfer the property to the plaintiffs.
Counsel for the defendant sought to rely on the fact that there was no evidence that his late wife ever made any promise to the plaintiffs as to the property one day becoming theirs. It is true that the plaintiffs' evidence as to the arrangements made in 1996 all related to things said by the defendant, not things said by his wife, even though she was a joint owner of the property. However there was a substantial body of evidence to the effect that she was always present, or nearly always present, when the relevant discussions took place. There was a substantial body of evidence that she participated in discussions with her husband when decisions were to be made. I am satisfied that everything said by the defendant in 1996 was said by him on behalf of both himself and his wife.
Even if the defendant's promises concerning the property were made unilaterally, without the concurrence or consent of his wife, I am satisfied that, now that he is the sole owner of the property, it is unconscionable for him to assert his title to the property in opposition to the plaintiffs' claim. The claim based on proprietary estoppel must therefore succeed.
It does not necessarily follow that the defendant should be ordered to transfer the property to the plaintiffs. I am required to determine "the minimum equity to do justice to the plaintiff": Crabb v ArunDistrict Council [1976] 1 Ch 179 per Scarman LJ at 198; Commonwealth v Verwayen (1990) 170 CLR 394 at 411, 429, 454, 475-476 and 487; Public Trustee v Wadley (1997) 7 TasR 35 at 47, 59. Counsel for the defendant submitted that, if I concluded that the proprietary estoppel claim should succeed, I should award equitable compensation for the cost of improvements made by the plaintiffs to the property, and that that should be the full extent of the relief granted.
I reject that submission. It is true that, as Mason CJ and Wilson J said in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 405, "Holding the representor to his representation is merely one way of doing justice between the parties." However, on the facts of this case, I am satisfied that holding the defendant to his promise is the only way of doing justice between the parties. That is because I am satisfied that the plaintiffs acted to their detriment not just in making improvements to the house, but by foregoing the opportunity to purchase the Gagebrook property.

The overpayment issue

There is evidence that the defendant and his wife paid the following amounts:
·The purchase price of $35,000.
·Stamp duty on the transfer, amounting $675.60.
·Stamp duty on their mortgage, amounting to $186.32.
·Solicitors' costs in relation to the purchase, which would have been about $400.
No doubt they also incurred some minor expenses, including the registration fees on the transfer and the mortgage. The plaintiffs, perhaps generously, have formulated their claim in respect of overpayments on the assumption that the defendant and his wife paid a total of $40,000 in 1996 comprising the purchase price and associated expenditure.
I was provided with an agreed set of calculations as to the balance that would have been outstanding from time to time if an agreement had been entered into as asserted by the plaintiffs. Those calculations take into account an assumed initial expenditure of $40,000, the rates of interest payable by the defendant and his wife under their mortgage from time to time, and the actual payments made by the plaintiffs. According to those calculations, if there was an agreement as asserted by the plaintiffs, they finished paying all that they were required to pay in August 2013 and subsequently paid a further $31,548.39 before they stopped making payments in September 2021. The plaintiffs are seeking to recover that sum from the defendant.
Counsel for the plaintiffs argued that they were entitled to restitution of that sum on the basis that the relevant payments had been made in the mistaken belief that those payments were required to be made, relying on David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. However I am not satisfied that the plaintiffs made any such mistake. They simply did not know whether they had reached or passed the point where the payments had fully reimbursed the defendant for the purchase price, loan interest and purchase costs. Indeed it was pleaded in their statement of claim dated 6 December 2019 that they believed they had paid "an amount in excess of the Defendant's purchase costs".
No basis other than mistake of fact was relied upon for the claim for restitution. As Mason CJ, Deane, Toohey, Gaudron and McHugh JJ observed in David Securities at 379, "… it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality." No such qualifying or vitiating factor has been established in this case. The claim for restitution must therefore fail.

Conclusion

For these reasons I order that the defendant transfer to the plaintiffs the land contained in Certificate of Title Volume 34028 Folio 2 unencumbered by any mortgage.