Rau v Rau
[2014] VCC 175
•3 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
FAMILY PROPERTY DIVISION
Case No. CI-12-03830
| PHILLIP GEORGE RAU | Plaintiff |
| v | |
| JOHN CHARLES RAU -and- PHILLIP CHARLES RAU | Defendants |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 28, 29, 30 and 31 January, 3, 4 and 6 February, 2014 | |
DATE OF JUDGMENT: | 3 March 2014 | |
CASE MAY BE CITED AS: | Rau v Rau & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 175 | |
REASONS FOR JUDGMENT
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Subject: ESTOPPEL
Catchwords: Proprietary estoppel – plaintiff the son of the second defendant, and brother of the first defendant – whether the second defendant made a promise to confer an interest in a farm on the plaintiff – whether the promise was uncertain and/or ambiguous – whether the plaintiff relied on the promise – whether the plaintiff suffered any detriment – whether any cause of action known raised by the pleadings against the first defendant – second defendant transferred the farm to the first defendant – plaintiff occupying part of the farm as a licensee – counterclaim by the first defendant against the plaintiff for possession
Cases Cited:Flinn v Flinn [1999] 3 VR 712; Ramsden v Dyson (1866) LR 1 HL 129; Giumelli v Giumelli (1999) 196 CLR 101; Donis v Donis (2007) 19 VR 577; Harrison v Harrison [2013] VSCA 170; Harrison v Harrison [2011] VSC 459; Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors [2008] VSCA 86; Thorner v Major [2009] 1 WLR 776; Van Dyke v Sidhu [2013] NSWCA 198
Judgment: The plaintiff's claim is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Gillies | Keating Avery |
| For the First Defendant For the Second Defendant | Mr R Phillips Mr D Forbes | Binnie & Associates Harris Lieberman |
HIS HONOUR:
Some relevant background
1 The Rau family has farmed land on both sides of the Murray River east of Albury/Wodonga for about three generations. The land is comprised of 240 acres of land at Bonegilla, which is on the Victorian side of the Murray River, and land at Mullengandra in New South Wales.
2 Maps and aerial photographs show that the land at Bonegilla is accessed via Island Road, which runs approximately south off the Riverina Highway in New South Wales and crosses the Murray River into Victoria. An aerial photograph identified by Phillip George shows part of Island Road.[1] The photograph shows the Murray River snaking its way from north to south. The land at Bonegilla is situated on both the north side and the south side of the Island Road.
[1]CB 174
3 Toward the north-west corner of the photograph are three dwellings. The dwellings are occupied by the plaintiff (“Phillip George”), the first defendant (“John”) and the second defendant (“Phillip Charles”). The dwellings occupied by John and Phillip Charles are on the north side of Island Road. The dwelling occupied by Phillip George is on the south side. The dwellings are in close proximity to each other. The dwellings occupied by Phillip George and John are almost just across the road from one another. The dwelling occupied by Phillip Charles is to the east of the dwellings occupied by Phillip George and John and perhaps only 100 meters east.
4 The dwelling occupied by John was his grandparent’s house. He has lived there for many years. The dwelling occupied by Phillip Charles was built by him and his wife, Doris. The dwelling occupied by Phillip George comprises a caravan and a shed. The land on which the caravan and shed is situated is described as “Butts”.[2] Initially, the caravan and shed occupied three-quarters of an acre of land. At some later time, Phillip George fenced off more land totalling five acres.
[2]Title searches reveal that the land described as “Butts” gained that name because it was purchased by Annie Myrtle Rau (the mother of Phillip Charles, and the grandmother of Phillip George and John) and Phillip Charles in 1963 from Mary Teresa Butt
5 Doris and Phillip Charles had five children. In order of age they are Doris Ann Hartley (“Ann”), born 9 June 1946; Joy Marie Jenner (“Joy”), born 9 September 1948; Phillip George Rau, born 26 May 1951; John Charles Rau, born 3 March 1954, and Kathryn Mary Gardiner (“Kathryn”), born 18 July 1957.
The proceeding
6 Phillip George Rau (“Phillip George”) commenced this proceeding by Writ filed on 9 August 2012. The Writ was endorsed with a Statement of Claim, which was later amended. The Amended Statement of Claim was filed on 13 November 2012.
7 The causes of action pleaded in the Amended Statement of Claim essentially allege that Phillip Charles made a promise to Phillip George that if he worked on the farm, that the farm would be left to him. He alleges that he relied on the promise and acted to his detriment.
8 The other causes of action were abandoned by Phillip George. One was based on an allegation of undue influence, that is, that John had so suborned the Will of Phillip Charles that he procured a transfer of the farm to himself with the consideration being natural love and affection. Objection was taken to the plaintiff adducing any evidence of undue influence, because undue influence is actionable only at the suit of the victim of the undue influence, not by a third party.
9 The other cause of action alleged was that John knew of the promise made by Phillip Charles to Phillip George. Again, as a result of his alleged undue influence, he procured the transfer of the farm to himself, which amounted to a denial of the promise. That was said to amount to conduct on his part which was unconscionable.
10 At the commencement of addresses, Mr Gillies changed tack markedly by applying to amend the Amended Statement of Claim to include a pleading of a constructive trust. I understood that to be that Phillip Charles held half of the farm on trust for Phillip George. The substrata of that cause of action relied upon the same evidence as was said to support the claim in proprietary estoppel.
11 Initially, John Charles Rau (“John”) and Phillip Charles Rau (“Phillip Charles”) filed a joint Defence. They subsequently retained different solicitors and filed Amended Defences. John filed an Amended Defence dated 21 January 2014. Phillip Charles filed an Amended Defence dated 25 October 2013. Essentially, John and Phillip Charles denied the allegations made by Phillip George.
12 Mr B Gillies of Counsel appeared for Phillip George. Mr R Phillips of Counsel appeared for John. Mr D Forbes of Counsel appeared for Phillip Charles.
13 The parties provided three folders containing documents which they described as a Joint Court Book (“CB”). At the commencement of addresses, Counsel informed me that they had resolved what documents were to be tendered from the Joint Court Book. They provided me with a schedule identifying all of the relevant documents. The only documents which they informed me were not to be tendered were where each Counsel specified in the schedule that the document was "out". Other documents were tendered separately. I will refer to them where necessary.
The family dispute
14 It became very evident to me during the trial that the Rau family is a family divided. Ann and Kathryn were called by Phillip George. They gave evidence favourable to him. Joy was called by Phillip Charles. She gave evidence favourable to Phillip Charles and John.
15 Essentially, the dispute centred upon a representation which Phillip George alleges was made by Phillip Charles that if he worked on the farm, that the farm would be left to him and John. That representation was said to be a promise which Phillip George relied upon to his detriment, and a promise which created an expectation in him that he would receive part of the farm. In this context, the farm was a reference to Butts and Bonegilla. In 2011, Phillip Charles transferred that land to John, the consideration being natural love and affection. The transfer was the trigger for the commencement of this proceeding because it was said to be evidence of a wrongful denial of the promise.
Phillip George’s Case – A Promise?
16 I am not satisfied that a promise was made by Phillip Charles to Phillip George. I am satisfied that Doris, and perhaps Phillip Charles, engaged in conversations with their children of their wishes regarding the disposition of the farm and their other assets, that is, who would inherit the farm properties and any other assets remaining in the possession of Doris and Phillip Charles at their death. I will now set out sufficient of the evidence to demonstrate why I have reached that conclusion.
17 Phillip George gave evidence that a representation was made to him by Phillip Charles which he said amounted to a promise. He said:
Q.“Was anything said to you about working on the farm?---
A.Well they always said you know, ‘You'll grow up and work on the farm’ so it was just a natural thing to move onto the farm.
Q.What was said to you about growing up and working on the farm?---
A.Well over periods of time it was always said, ‘The farm will be yours one day, you’ve just got to get out and work it. You’ve got to do the hard things, cut out thistles and whatever it might be.’
Q.When was that first said to you?--
A.Probably from an age of 12, 13, 14 growing up - right through to in the 20s, in my age of 20s.”[3]
[3]Transcript 44-45
18 Although the earlier evidence given by Phillip George was that the promise was that if he worked on the farm it would be he is, he qualified that later in his evidence that in fact it was implied in the promise that the farm would be divided between him and John. He said:
Q.“Did you understand that you would receive the farm yourself?---
A.No, I expected it to be divided up.
Q.Between who?---
A.The farm, me and my brother.
Q.Right, that is your brother John?---
A.John, yes.
Q.So the expectation was that the farm would be divided up?---
A.Yes.
Q.Was any discussion ever had as to how the farm would be divided up?---
A.Not exactly how it would be divided up, no.” [4]
[4]Transcript 102
19 The foregoing is the sum total of the evidence given by Phillip George of the promise, and what expectation he had regarding the fulfilment of the promise.
The witnesses to the Promise
20 The next witness who gave evidence of the promise was Diane. She is the former wife of Phillip George. In relation to the alleged promise, she said:
Q.“Now, did you have any discussions with Phillip's parents about who would receive what from them, or any discussions about who would receive the farm?---
A.Yes.
Q.And what were those discussions?---
A.They were discussions if we were out there having dinner on a Sunday night or just playing cards, it was brought up occasionally about how the farm would split?---
Q.Yes?
A.And that it was that the boys were going to inherit the farm and the land, and the girls were going to get, what was said to me was ‘What is in the houses’.
Q.And how often did those conversations take place?---
A.It was probably only a couple of times. It wasn't a regular - - -.”[5]
[5]Transcript 180
21 The next witness was Ann. She did not witness any conversations had between Phillip George and Phillip Charles regarding the promise. She did engage in conversations with Doris and Phillip Charles of their wishes regarding the disposition of the farm and their other assets. She said:
Q.“Were there conversations about the disposition of the farm when your parents died? Now, the answer to that question is either yes or no?---
A.Yes, there was - yes, they'd talked about it. Yes.
Q.When they talked about it, when did they first talk about it to you and how old were you and if they continued to talk about it, how old were you when they continued to talk about it?---
A.Well, I probably would be probably 12 or more when they first talked about it in the first place and then later on in life it was talked about too.
Q.That discussion was had between you and your parents?---
A.Well, It was an ongoing thing that that's what we were always told, that the boys would get the farm and we'd get things that make up for what they got.
Q.How often did those conversations occur over a period of say from the age of 12 until recent times?---
A.I wouldn’t know properly but it did occur over the recent times.”[6]
[6]Transcript 201
22 The next witness was Kathryn. She did not witness any conversations between Phillip George and Phillip Charles regarding the promise. She did engage in conversations with Doris and Phillip Charles of their wishes regarding the disposition of the farm and their other assets. She said:
Q.“Was there any discussion whilst you were growing up and living on the farm between you and your parents about who would inherit the farm?---
A.Yes. It was always the understanding that the boys would inherit the farm and the girls would get paid out.
Q.Right. When Phillip left school can you recall anything being said to him by his father about the farm?---
A.Again it was - it was said that yes, that he’d work on the farm because it'd be his one day.
Q.When you were younger, did you help your mother around the house?---
A.Yes I did, when my elder sister sort of married and left home, my mother had asthma and I used to help with the housework and the cooking and then even after I was married I continued to help my mother and later on when she - with her arthritis, dementia, Alzheimer's I continued to help look after her.
Q.Did you have any discussions with her about to whom the farm would be passed to?---
A.Yes, there was many conversations.
…
Q.All right. You are being asked about conversations you had with your mother on the occasions when you were there at the house assisting. What were they relevant to the farm and what would happen to it?--
A.It was always that the boys would get the farm and us girls would get other things and get paid out.”[7]
[7]Transcript 240 and 242
23 Michael Gardiner, the husband of Kathryn, said that both Doris and John spoke to him before he married Kathryn about the farm. They both told him that he would not get the farm because it was for “the boys”. The reference to “the boys” was a reference to Phillip George and John. He did not give any evidence of engaging in any similar conversation with Phillip Charles.[8]
[8]Transcript 254
What Was the Promise?
24 Paragraph 11 of the Amended Statement of Claim pleads the representation as follows:
“Before the plaintiff left school and commenced working on the farm, the Second Defendant and the Plaintiff's mother, said to him if you work on the farm, the farm will be yours, or words to that effect. They repeated this on many occasions while the Plaintiff worked on the farm … .”
25 As the evidence unfolded, what became clear to me was that the farm was not defined as the total rural holdings of Phillip Charles, that is, Butts, Bonegilla and Mullengandra or limited to Butts and Bonegilla. Phillip George gave no evidence that the promise was limited to Butts and Bonegilla. Mr Gillies informed me that the relief sought by Phillip George was limited to the land at Butts and Bonegilla. That was so, because the land at Mullengandra is in New South Wales, and is land over which the Court has no jurisdiction.[9] The relief moulded around the promise was limited to half of the land comprising Butts and Bonegilla.[10]
[9]Transcript 20
[10]Transcript 18
Reliance on the Promise and Detriment
26 Phillip George said that he relied on the promise. He left school and worked on the farm when he was 16 years of age for a period of five years for $6 per week. He then took up employment with Uncle Ben’s as a factory worker. Uncle Ben's produces pet food. It has a factory complex in Albury. After commencing work with Uncle Ben's, he worked on the farm before and after he ceased work at Uncle Ben's for the day. He worked in that manner and to that extent until 2000, when he was involved in a physical fight with John on the farm. After that date, he did no further work on the farm.
27 Phillip George and his witnesses gave evidence of the work which he did on the farm which was relevant to both reliance on the promise and the detriment he alleges he suffered in the expectation of obtaining an interest in the farm.
28 Phillip George’s evidence in that respect was as follows:
Q.“Did Uncle Ben's have other factories?---
A.Yes, they had – not initially but they had one at Bathurst which was the dry food, then they opened up another one at Ballarat which was a chocolate factory which is now called Mars Petcare.
Q.Was any employment offered to you to go to Bathurst for example?---
A.Yes.
Q.What was the job there that you were offered in Bathurst?---
A.That was a supervisor job up there.
Q.Would that have meant more money and pay for you?---
A.Yes, it would have.
Q.Did you take that job?---
A.No.
Q.Why didn't you take that job?---
A.Well, the influence was to stay on the farm and help work there which I'd already been doing for years.
Q.Did you have a discussion with your father about it?--
A.Yeah.
Q.When about do you think you had that discussion, can you recollect?---
A.I can't give exactly, no.
Q.What did he say to you, are you able to say?--
A.He - well he said - - -
…
Q.You played football?---
A.At North Albury and Holbrook.
Q.Were you at one stage invited down to train with North Melbourne?---
A.Yes.
Q.When about was that?---
A.Late ’60s or early ’70s. Early ’70s, sorry.
Q.Was anyone else invited down at the same time as you?---
A.Yes, Ross Henshaw.
Q.Who did he play with at the time?---
A.He played at North Albury with me at the same time.
Q.Did you go down?---
A.No.
Q.Why not?---
A.Well, it was said to me again, ‘What are we going to do on the farm without you?’ So I wasn't over keen probably on the city so it was an easy decision for me to make because I was wanted on the farm just to stay there.
Q.Was anything said to you about if you continued to work on the farm the farm would be yours?---
A.Yes.
…
Q.Yes, thank you, Your Honour. (To witness) Was anything said to you about staying on the farm at that stage?---
A.At which stage?---
…
Q.The stage of going down to play football with North Melbourne?---
A.Yes, it was just said that, like, ‘If you go down - if you go to North Melbourne or Melbourne, what are we going to do on the farm without you?’”[11]
[11]Transcript 45-46 and 50-51
29 Diane said that the Phillip George was offered a position with Uncle Ben's new operation in Bathurst. It was as a foreman or supervisor or line manager or something similar. She wanted Phillip George to accept the offer. He said he would not, because Bathurst was too far away from the farm which would not enable him to work on the farm.[12] She said nothing about the offer by North Melbourne for Phillip George to go to Melbourne to train with it.
[12]Transcript 180-181
30 Diane gave some extensive evidence of the work which Phillip George did on the farm. It was in significantly greater detail than Phillip George gave in his evidence. She said:
Q.“How many hours a week do you estimate that Phillip spent working on the farm while he was working at Uncle Ben's?---
A.Some weekends he'd do a whole day but I don't know how to estimate it. It could have been 10, it could have been 15 or 20. It depended. If it was hay carting time or it's I've never worked out hours.
Q.And when he worked on the farm, did he work with his father on the farm?---
A.Most of the time.
Q.Was he rung up and asked to go out there, or did he go out there of his own volition?---
A.It would be both.
Q.At the time the relationship came to an end, was he still working on the farm?---
A.Mine and his relationship?
Q.Yes?---
A.Yes, he yes.
Q.And he was still milking?---
A.I don't know if they were still in milking at that time because they did go out of milking at some stage.”[13]
[13]Transcript 178-179
31 Other witnesses gave evidence of the understanding of the work which Phillip George did on the farm and the extent to which he committed himself to that work. A summary of that evidence is as follows.
32 Alec Shaw met Phillip George forty years ago when they worked together at Uncle Ben's for about seven years. He said that the plaintiff told him that he worked on the farm. The conversations extended to Phillip George working before and after the shifts he undertook at Uncle Ben's. It was his impression that the plaintiff worked on the farm every day.[14]
[14]Transcript 190-191
33 Ann said that the plaintiff was employed by her grandmother and Phillip Charles to work on the farm. He worked on the farm from about the age of 16 to about the age of 20 years. He worked very hard. He helped with milking, harvesting and what ever other work Phillip Charles wanted him to do. The hours he worked, for example, when milking was at 6.00 in the morning and 6.00 at night. He continued working on the farm helping out Phillip Charles after he commenced working at Uncle Ben's.[15]
[15]Transcript 202-203
34 Kathryn said that the plaintiff worked on the farm from about the age of 16 years. She believed he was a hard worker. He milked cows in the morning and evening; did general farm work, such as, fencing, harvesting, working the cows, driving a tractor, ploughing and work of a similar kind. He worked on the farm after he commenced working at Uncle Ben's arranged around his shift work.[16]
[16]Transcript 239-240
35 Geoffrey Boyd has known Phillip George for over forty years. He met him when they played football for North Albury. He picked the plaintiff up and drove him to football matches. On a lot of occasions Phillip George would not stay for a drink after a football match because he had to get back to the farm to undertake work on the farm. He observed Phillip George working on the farm. He said he was a very hard worker. He worked with Phillip George at Uncle Ben's for about seven years or maybe a bit longer. He said that Phillip George worked on the farm all the time while they worked together at Uncle Ben's.[17]
[17]Transcript 256-257
36 Stuart Monte met the Rau family in about 1978. He helped out on the farm from about 1978 or 1984 for about ten or twelve years or so. The only relevant part of his evidence going to detriment was that he saw Phillip George do some work on the farm on some occasions, for example, helping load hay onto a truck which was taken to haystacks.[18]
[18]Transcript 265-266
37 Phillip George said that he continued to work on the farm up until 2000. It was in that year that he had a fight with John. After the fight, he ceased doing any further work on the farm. The work he did up until 2000 involved doing general work and whatever needed to be done on the farm. For example, he said he moved irrigation pipes, marked and drenched cows and calves, and did fencing work.[19]
[19]Transcript 55
The evidence to the contrary
38 The evidence of Phillip Charles and his witnesses, and the evidence of John, painted a very different picture altogether to the case presented by Phillip George and his witnesses.
Phillip Charles – no diminished capacity
39 Before turning to the evidence of Phillip Charles, it is relevant to note that the evidence of Phillip George and his witnesses was that Phillip Charles has suffered a diminished capacity intellectually, and that his decision to transfer the farm to John was orchestrated by John. Their evidence also made a pre-emptive attack on John, that he has conducted himself in a manner consistent with suborning the Will of Phillip Charles in almost all respects. I reject that notion out of hand. As will be seen from the summary of the evidence of Phillip Charles, John and their witnesses, there is just no substance to those allegations.
40 However, I was concerned to make an assessment of Phillip Charles to determine whether there was any merit in the allegations of a diminished capacity. For that purpose I closely watched him as he give his evidence. He candidly admitted a loss of memory for detail; however, he gave his evidence tolerably well. He gave responsive answers where he could, with sufficient detail for his answers to be meaningful answers. His manner of giving evidence gave me the impression that he is, and probably always has been, a strong-willed man who speaks directly and bluntly.
No Promise
41 Phillip Charles’ denial of the substance of Phillip George’s case commenced with his evidence about the conduct of Phillip George when he was a young boy. He said that Phillip George was not encouraged to leave school to work on the farm. He said that Phillip George did not like school and would sometimes not go to school. He said that Doris sometimes had to dress Phillip George, and take him to school because he would not get up out of bed and go to school willingly.[20] To the extent that it was part of Phillip George’s case that he left school for the purpose of working on the farm, that was denied. He left school because he was a recalcitrant schoolboy. That led him to residing on the farm and to working on it before he set out upon work off the farm.
[20]Transcript 442
42 In his evidence-in-chief, Phillip Charles said that he did not think he said to Phillip George that if he worked on the farm that it would be his, or words to that effect.[21] When he was cross-examined on that subject, he said:
[21]Transcript 443
Q.“Can you remember saying to Phil when he was young, that ‘If you work the farm, the farm will be yours’?---
A.If he worked the farm it'd be his?
Q.Yes?---
A.Not to the best of my knowledge mate, I never ever did that because why would one get - why would one get something and the other four of the children get nothing?
Q.Would you ever say to him that the farm would be his and John's if he worked the farm?---
A.I can't remember ever saying that.
Q.Did your mother say that?---
A.My mother?
Q.Yes?---
A.My mother might've said it.
Q.She might have said it?---
A.She might've said it yes, I have - have a rough, rough - it's only vague, I think that one day something was said that she might've said to them that ‘One day the farm may be yours’ or something to that effect, I'm not - I can't - I can't really - I can't pin it down.
Q.You can't pin it down?---
A.No.”[22]
[22]Transcript 456-457
43 Phillip Charles was more emphatic that he did not say that to Phillip George when it was directly put to him that Ann and Kathryn had given evidence that there were family discussions that the boys would get the farm and the girls would get something else. He said:
Q.“You see Kathryn and Ann both said that the discussions in the family were that the boys would get the properties and the girls would get made up along the way, they would get something else. Was that how the rules were to be?---
A.That’s news to me.
Q.You see, she said there were discussions with you and your wife - - -?---
A.When? Where?
Q.Well, they said over all the time that they lived there that was the understanding within the family, those were the discussions that took place?---
A.I don't remember anything about discussing - I never discussed with my business with anybody, so I would not have discussed it with them.
Q.You see, Dianne Rau will say that that discussion was made clear to her when you were playing cards when she would come out and see you on Sunday evenings. Do you recall those discussions?---
A.Not to the best of my ability that was never discussed.”
Phillip George’s residence on the farm
44 Phillip George came to live on the Butts’ land in about 1982. He was formerly married to Diane Gay Rau ("Diane"). They married in 1973. They initially lived in a flat in Albury, and later in a house in Cadell Street, Albury, which they had purchased. Two children were born of the marriage: Phillip and Bryan. The marriage did not last. It irretrievably broke down in about 1982. Diane remained in the house at Cadell Street. Phillip George moved back to the farm. He alleged that Phillip Charles told him that he could live on the farm for as was long as he needed to. Phillip Charles denied that he wanted Phillip George to move back on the farm or that he told him that he could live on the farm for as long as he needed to.
45 Phillip Charles said that he did not want Phillip George to return to the farm at the time when his marriage to Diane irretrievably broke down. He said:
Q.“Do you remember that Phillip separated from his wife some quite a few years ago?---
A.They did separate, yes.
Q.Do you remember him coming back to live on the farm?---
A.Yes, he came back. I don’t (indistinct) I didn’t actually want him back on the farm, I’ll tell you straight out, and his - his brother insisted that I help him out.”[23]
[23]Transcript 445
46 Phillip Charles said that it was his decision to have Phillip George leave the farm. He said his reasons for wanting him to leave were as follows:
Q. “Do you want him to leave?---
A. I did, yes.
Q. Why did you want him to leave?---
A.Because the boys don’t see eye to eye and it’s no good no good. I can’t run a farm with a bloke living there on a part of your farm where you've got your stockyards and everything else.
Q. Why is that?---
A.Well, sometimes his dogs are barking, we've got to try and get cattle in the yards. Well how do you get them up there?
Q. How long have you been trying to get Phillip to leave the farm?---
A.That I could not tell you. Tony Brandt probably would be able to answer that question for you. I can't.
Q. Do you know if it's been a long time?---
A. It’s been quite a long time, mate.”[24]
[24]Transcript 446
47 Under cross-examination, he repeated much the same reason for wanting Phillip George to leave the farm:
Q.“And he wasn't causing you any trouble, was he?---
A.Well, it wasn't very nice him living there, it's never been nice. The thing about it is, I've told you before, only for his brother he would not have been there because I reckoned that it would cause trouble later on in life and I just wanted the farm - no one else on the farm.”[25]
[25]Transcript 462
48 Under cross-examination, John gave very similar evidence of the trouble which Phillip George was causing. He said:
A.“… Because I wanted to know what could be done too because I'd been sick of it and I'd nearly been killed a few times because of his dogs.
Q.You had nearly been killed a few times because of his dogs, is that what you are saying?---
A.Yes.
Q.Serious?---
A.Serious. I had bullies coming up mate, seven and 800 kilo bullies coming up and his dogs spooked him mate and I’m on a motorbike and can’t get out the road and they're jumping over the top of my motorbike, what am I to do? If that's not serious I don't know what isn't.”[26]
[26]Transcript 530-531
49 Phillip Charles expanded upon that reason why he wanted Phillip George to leave the farm. He said:
Q.“Do you remember transferring the ownership of your farm to your son, John?---
A.I did it, yes.
Q.Whose decision was it?---
A.Mine.
Q.Why did you decide to do that?---
A.Well, I thought that was my privilege to do what I wanted to do with my farm and not it’s only causing trouble, ill-will in the family, so I did what I thought was best for the family.
Q.Did any person did anybody put pressure on you to do that?---
A.Me.
Q.Anybody else?---
A.Nobody else had anything to do with it, mate. That’s my decision. Probably I might have got advice from Tony Brandt, I can't remember whether I went to Tony and got some advice from him or not. It better be there because I can't remember whether I did or whether I didn’t. It may have happened between Dib Simpson, I don't know.” [27]
[27]Transcript 446. He repeated that evidence at 453 and 466.
50 Under cross-examination, he added:
Q.“Did you say to Janet that the reason you had to transfer the farm over to John was so you didn't have to deal with it anymore?---
A.Most likely I did.
Q.What did you have to deal with, what was the problem that you were dealing with?---
A.Disputes between the boys.
Q.Well when was the last time you were aware that there was a dispute between John and Phillip?---
A.Oh, I couldn't tell you, it's a long while.”[28]
[28]Transcript 463-464
51 On the same subject whether Phillip George and John could get on in any respect, he added that he did not think there was any hope of them working together and that such a thing, in his view, was impossible.[29]
[29]Transcript 464
52 Joy lives in Merbein. She visits Phillip Charles two or three times a year, sometimes staying for a couple of weeks at a time. She speaks to him by telephone every week. Phillip Charles told her, during telephone calls, that Phillip George was causing trouble on the farm because of his drinking, and she added that although she did not know what Phillip Charles meant by his reference to causing trouble, she was left with the impression that Phillip George was causing trouble all of the time.[30] She had observed Phillip George to cause what she described as trouble on one occasion at Christmas when Phillip George refused to sit and eat lunch with the rest of the family. That event occurred in excess of five years ago. She also said that Phillip Charles told her that he wanted to transfer the land to John because he was tired of attempts at trying to get Phillip George off the farm.
[30]Transcript 496-497
53 I have little hesitation in concluding at this point that Phillip Charles was not suffering from any diminished capacity intellectually at the time when he gave his evidence. Equally, I have little hesitation in concluding that when Phillip Charles took unsuccessful steps to have Phillip George vacate the farm, and his decision to transfer the farm to John, that he was not suffering from any diminished capacity intellectually.
54 I think it was inherent in his evidence that he had a poor view of Phillip George. He could see that his residence on the farm would lead to disharmony with John, and would make his management of the farm more difficult. It was on the basis of the foregoing that he made the decision to transfer the farm to John.
John’s influence over Phillip Charles
55 It was part of Phillip George’s case that John’s influence over Phillip Charles was so significant, that he has suborned his will, resulting in him doing John's bidding at John's whim and direction. The foregoing was based upon evidence adduced by Phillip George of the foul and aggressive language used by John when he spoke to Phillip Charles. Observations had been made of incidents of that kind which suggested that Phillip Charles’ Will had been overpowered by John, and he then gave in and did John's bidding. It was also based upon evidence adduced by Phillip George that John has actively prevented he, Ann and Kathryn from having any contact with Phillip Charles.
56 Although this evidence went more to the cause of action based upon undue influence, and to some extent the cause of action based on unconscionable conduct, it was largely irrelevant to the cause of action based upon proprietary estoppel. However, I permitted the evidence to be adduced for the purpose of determining whether it had any collateral relevance to the cause of action based upon proprietary estoppel.
57 The allegations made by Phillip George and his witnesses against John that he effectively suborned the Will of Phillip Charles has no substance. It became so very obvious that John has a foul mouth and is aggressive. He candidly admitted that he spoke to Phillip Charles using foul and aggressive language, but so did Phillip Charles when engaging in exchanges with John. The upshot of their arguments and exchanges when they spoke to each other in that manner resolved without any lasting effect upon their relationship.
58 Despite the conclusion I have reached about what I should make of Phillip George's allegations about John’s conduct, I propose to summarise it nonetheless so that it can be clearly understood what evidence I accept and reject regarding the allegations made against John. I will firstly turn to John's evidence regarding the observations of the language he is alleged to have used. In evidence-in-chief, John described his proneness to use such language. He said:
Q.“Can you describe the relationship you have with your father?---
A.We’ve got a very good relationship, we're more - more than father and son, we're best mates.
Q.Would you say that has been the situation over the course of your lifetime or there have been periods of time when you and your father have not had a good relationship?---
A.We have our arguments, don't worry about that - pretty good ones at times.
Q.We have heard quite a bit of evidence about these arguments. Your nickname is Bull, is that right?---
A.That's right.
Q.And your father is known as Cocky?---
A.Yes.
Q.Do you agree that when you and your father are having arguments you would speak to him in very strong language?---
A.I certainly would, yes. It's part of my culture I speak shocking sometimes.
Q.Would your father speak to you in the same way?---
A.Yes.
Q.When you have these arguments, what generally speaking happens at the end of them? ---
A.Well, it's all over and we have our say each and then we think about it a couple of seconds and it's all over and go back to doing what we're doing.”[31]
[31]Transcript 516-517
59 Under cross-examination of Phillip Charles by Mr Phillips, he was asked about his relationship with John; whether they argued, and whether foul language was used when they spoke to one another. He said:
Q.“When you and John work on the farm do you sometimes have disagreements with each other?---
A.Yeah, we do, we have decent old disagreements but once we've sorted it out it's all over. It goes up in the air and it's blown away.
Q.Is it true to say that when you and John are having a disagreement that John speaks to you using strong language?---
A.I don't know, I suppose we exchange it both ways. I don't know - I can't give you an answer to that. I don't know, I've got no records of what I did and what we didn't do.
Q.There is evidence - I need to put some of these words to you, Mr Rau, that John for example, would call you a ‘fucking lazy bastard,’ or a ‘fucking lazy old bastard,’ do you remember him saying that sort of thing to you?---
A.I don't know, he could have. I could have called him that too. I mean - - -
Q.How would you describe your relationship with John?---
A.With John?
Q.Yes?---
A.How would you want me to? I mean, we farm together, we live together and cook together and eat together and all the rest of it, so I suppose, I don't know, how do you want to put it then?
Q.You get on very well with each other, don't you?---
A.(No audible response.)
Q.You get on very well with each other, is that right?---
A.Yeah, we get on well with the other until we have an argument over something and sort it all out and away we go again.”[32]
[32]Transcript 450-451
60 Both Phillip Charles and John were cross-examined about the foul language John used when he spoke to Phillip Charles by Mr Gillies. The cross- examination was relatively brief. Phillip Charles said:
Q.“Does John speak to you crude language?---
A.Yes, we abuse one another.
Q.And when you abuse one another, do you ignore it?---
A.Did what?
Q.Do you ignore it, do you ignore the abuse?---
A.Annoyed?
Q.Do you ignore the abuse?---
A.Yeah, we’re just mates straight after it’s over, we have our blue and that's it, finished. We go back to where we were before we started.” [33]
[33]Transcript 465
61 John said:
Q.“You would agree with me wouldn't you that you've heard evidence that you speak to your father in abusive language?---
A.Yes.
Q.You say that's common for you to use abusive language?---
A.Yes.
Q.You don't think that's demeaning towards your father?---
A.No.
Q.So you think your father quite happily accepts being abused?--
A.Yes and not in - not in malice terms, just in the way I speak.
Q.You heard your sister say - your sister Kathryn say - that your father's responses to that sort of abuse was simply to accept it and say nothing and move on?---
A.No.
Q.You didn't hear that evidence?---
A.I heard it, I disagree with it.
Q.You see I suggest to you that that abuse of your father over a long period of time is demeaning to him, isn't it?---
A.No.
Q.… Mr Rau, over a long period of time that sort of language is pretty hard to bear isn't it?---
A.Why?
Q.Well if someone says to you that ‘You're a fucking old man and you should get off the farm’, doesn't that after a while get to you?---
A.No.
Q.You think he should be happy with that?---
A.No, it’s the way I speak.
Q.You see - - -?---
A.Not the only one I speak that way to.”[34]
[34]Transcript 545-546
62 Phillip Charles called a number of witnesses who painted a very different picture of Phillip Charles and his relationship with John. One of the most impressive of those witnesses was Mr Brandt, solicitor. Phillip Charles engaged Mr Brandt, solicitor, to advise him of the steps necessary to transfer the farm to John. I am fortified in reaching the conclusion referred to above that Phillip Charles does not, and did not, have a diminished capacity when he made the decision to transfer the farm to John by the evidence of Mr Brandt. A serious and broad attack was made upon Mr Brandt by Mr Gillies which I consider has no foundation.
63 Mr Brandt’s diary notes of a conference he had with Phillip Charles and other contact with Phillip Charles, John and Joy, were tendered in evidence.[35] The evidence of Mr Brandt of what he recorded in the diary notes is highly relevant to whether Phillip Charles made the decision to transfer the farm to John independently or did so under the influence of John.
[35]Exhibit B
64 The first diary note is dated 28 July 2011. He received a telephone call from Joy, who made an appointment for Phillip Charles. The diary note reveals that she told Mr Brandt of problems Phillip Charles was having with Phillip George, for example, Phillip George disrupting cattle operations and farming operations.
65 The second diary note is dated 29 July 2011. Phillip Charles, John and Joy attended Mr Brandt’s offices together. Initially, Mr Brandt saw Phillip Charles alone. Phillip Charles told Mr Brandt of the problems he was having with Phillip George, for example, that he had had enough of him; he had not paid rent; he had disrupted the family; he had disrupted cattle operations and farming operations, all of which led Phillip Charles to decide to make an intergenerational transfer of the farm to John.
66 Mr Brandt administered a test described as “Capacity worksheet for lawyers”. Essentially, its purpose is to assess older adult clients who may have diminished capacity to give instructions and to understand advice. The test was administered at the conference on 29 July 2011.[36] Mr Brandt was satisfied that the results of the test permitted him to reasonably reach the conclusion that Phillip Charles did not have a diminished capacity to give instructions and to understand advice. He conferred with Phillip Charles for about 40 minutes. John and Joy were subsequently invited to join Mr Brandt and Phillip Charles. The conference then continued for another 20 to 30 minutes or so.[37]
[36]Exhibit D2/4
[37]Transcript 336-337
67 Two things emerged from the conference. Firstly, Phillip Charles gave Mr Brandt instructions to prepare the necessary transfer of land to transfer the farm to John. Secondly, Phillip Charles and John gave Mr Brandt instructions to prepare a partnership agreement to merge their individual cattle holdings as one business operation. Mr Brandt suggested to John that he could obtain his own legal advice if he wished. John declined, and asked Mr Brandt to prepare the relevant partnership agreement.
68 Mr Brandt set about preparing a Transfer of Land which Phillip Charles and John executed on 3 August 2011.[38] The consideration for the Transfer was expressed as “natural love and affection”. The Transfer of Land was signed at Mr Brandt’s office. Prior to it being signed, Mr Brandt received a telephone call from John, informing him that Phillip Charles wanted to speak to him. Phillip Charles then spoke to Mr Brandt. He informed Mr Brandt that he wanted to sign the Transfer that day.
[38]CB 243
69 Phillip Charles and John attended Mr Brandt’s office on 3 August 2011. Mr Brandt firstly saw Phillip Charles alone. Again, he satisfied himself that he was not suffering a diminished capacity to give instructions and understand advice. He did not administer the test, but it would appear that he spoke to Phillip Charles sufficiently to satisfy himself that there was no evidence of a diminished capacity. Subsequently, both Phillip Charles and John executed the Transfer of Land.
70 Mr Brandt in fact prepared a number of transfers of land. He was cross-examined about the reasons why that was so. It would appear that there was some issue raised by a firm which he engaged to lodge the Transfer of Land relating to obtaining a farm exemption for taxation purposes.
71 Mr Gillies cross-examined Mr Brandt before Phillip Charles and John were called to give evidence. Mr Gillies’ cross-examination was directed to testing whether Mr Brandt had taken sufficient steps to satisfy himself that the instructions given by Phillip Charles were not influenced by John. There was a hint in the cross-examination that Mr Brandt was either complicit in doing John’s bidding or turned a blind eye to John’s conduct. I reject the criticism made of Mr Brandt. I do so, because I am satisfied that Phillip Charles acted independently of John and because Mr Brandt was careful to ensure that Phillip Charles was not suffering from a diminished capacity to give instructions and to understand advice, and was careful to confer with him in the absence of John and Joy when administering the test and taking instructions and giving advice.
72 Mr Phillips submitted that if John was the villain described by Phillip George and his witnesses, and was intent upon suborning the Will of Phillip Charles, the evidence of Joy painted a very different picture.
73 Joy is the person who has been invariably nominated by Phillip Charles to be his power of attorney, not John. She was taken through a number of powers of attorney which demonstrate that to be the case. A summary of the powers of attorney is as follows:
· a General Power of Attorney (medical treatment) dated 21 February 2012. John is her co-attorney.[39]
[39]CB 251-252
· a General Power of Attorney dated 21 February 2012.[40]
[40]CB 253-254
· Appointment as an Enduring Guardian dated 4 April 2008.[41]
[41]CB 255-257
· a General Power of Attorney dated 4 April 2008.[42]
[42]CB 258-260
· an Enduring Power of Attorney (financial) dated 8 October 2004.[43]
[43]CB 261-265
· an Enduring Power of Guardianship dated 8 October 2004.[44]
· an Appointment of Enduring Guardian dated 21 October 2004.[45]
[44]CB 266-269
[45]CD 270-271
74 Joy is also the executor of Phillip Charles’ Will. Her son and daughter are the alternative executors. She said that Phillip Charles appointed her and her son and daughter to occupy the role of executors because he trusted them.[46]
[46]Transcript 501
75 Mr Phillips submitted that if John was so intent on suborning the Will of Phillip Charles, it is odd that John did not go to the extent of being appointed the attorney and guardian under the instruments I have set out above, and executor of his Will.
76 If I needed to be more fortified in reaching the conclusion that there is no substance to the allegation that John is the villain painted by Phillip George and his witnesses, then I need go no further than the evidence of Mr Brandt and Joy. Without unnecessarily repeating what I have said in connection with Mr Brandt’s evidence, I unhesitatingly accept his evidence and the conclusions he reached regarding Phillip Charles’ capacity to give instructions and understand advice, particularly in relation to the proposed intergenerational transfer of the farm. Joy's evidence demonstrates that Phillip Charles made the decision who to appoint as his attorney and guardian, and executor of his Will. There is nothing in the evidence before me which suggested Joy has not acted in the interests of Phillip Charles, and independently and fairly.
The other evidence of their relationship
77 A number of witnesses gave remarkably contrasting evidence to the evidence of their observations of the relationship between Phillip Charles.
78 The first of those witnesses was Janet Collins. Her parents were friends of Phillip Charles. She has known Phillip Charles for a long time, and has known Phillip Charles and John on a more personal basis over the last five or six years. She has visited them as frequently as once a week and sometimes twice a day. She has taken Phillip Charles to medical appointments, obtained his medication and has liaised with a district nurse who visits him.
79 Ms Collins described Phillip Charles as being an independently minded man. She was asked about any conversation she had with Phillip Charles regarding his reasons for transferring the farm to John. She said that he told her:
“… The last conversation I had with him was, ‘Fuck the lot of them, it’s all gone now, I don’t have to have to have it, it’s John's problem, he can deal with it’.”[47]
[47]Transcript 300
80 Ms Collins also said that Phillip Charles told her that the reason why he transferred the farm to John was because it was the natural thing to do because John was the one who worked with him on the farm.[48]
[48]Transcript 301-302
81 Ms Collins was then asked about what she had observed of Phillip Charles’ and John’s relationship. She said:
Q.“Are you able to say whether one particularly influences the other?---
A.No, they don’t - they make decisions, they have arguments, but they’re sorted there and then. It’s not something that drags on. Nobody makes a decision for the other one, they’re both still very independent people.”[49]
[49]Transcript 302
82 Under cross-examination, Ms Collins said that Phillip Charles and John spoke to each other like any father and son would speak to each other. She had not heard John swearing at Phillip Charles.[50] Ms Collins gave evidence before Phillip Charles and John. Her evidence as to the manner they spoke to each other and the absence of swearing seemed remarkable, and, in particular, after Phillip Charles and John gave evidence of their individual propensity to speak to each other using foul language.
[50]Transcript 305
83 However, Ms Collins’ evidence was consistent with the evidence of Ms Heather Yensch. Ms Yensch’s son, Sam Yensch, had been going to the farm since he was about seven or eight years of age. Ms Yensch has known the Rau family for about 28 years. At present she visits Phillip Charles and John about twice a week. She obtains groceries for them and drops off fresh milk and other items. On occasions when she does the foregoing she sometimes stays and talks to Phillip Charles and John. She said that she has observed them having disagreements, and during those disagreements she has observed John to bellow at Phillip Charles, which she regarded as sounding off and nothing more. She also observed John caring for Phillip Charles, for example, making sure that Phillip Charles took his medication, took in plenty of fluids and ate the right foods.[51]
[51]Transcript 323-324
84 Under cross-examination, Ms Yensch said that John rarely swore in front of her. She had not observed anything untoward between Phillip Charles and John when they argued. It might be coincidence, but the apparent reluctance of Phillip Charles and John to swear in the presence of Ms Yensch may be consistent with Ms Collins not hearing the swearing which Phillip Charles and John admitted was part of the way they interacted conversationally because of a reluctance to swear in the presence of women.
85 Mr Sam Yensch gave similar evidence to Ms Collins and his mother. He said that he visited the farm frequently since he was about seven years of age. He had observed Phillip Charles and John yelling at each other about how things should be done on the farm. He said that they would resolve their differences and things would then go back to normal. He had not observed one dominating the other. He had observed John swearing a lot, and Phillip Charles becoming frustrated and subsequently swearing himself.[52]
[52]Transcript 313-314 and 321
86 Ms Collins, Ms Yensch and Sam Yensch have observed Phillip Charles and John to argue. Their evidence confirms the evidence of Phillip Charles and John that their arguments resolve without any lasting impact upon their relationship. Therefore, I accept that John bellows and shouts at Phillip Charles and uses foul language, and that Phillip Charles has responded in a like manner, but after the substance of the argument has run its course, they return to having a cordial relationship.
87 There were two other peripheral attacks made upon John which I also consider to have no substance.
88 The first of those was that John would ride on a quad bike and shout orders to Phillip Charles from the quad bike. The orders were littered with foul language. That evidence gave the impression that John was a bully, who took the easy route in doing farm work by sitting on a quad bike shouting orders to Phillip Charles who would do his bidding. However, it later became clear why John used a quad bike. He suffered a serious injury to one of his legs on 2 October 1997 when he fell from a motorcycle. The injury has interfered with his mobility.
89 The second was that John prevented Phillip George, Ann and Kathryn from having any contact with Phillip Charles either directly or by telephone. John said that it was Phillip Charles’ decision not to speak to Phillip George, Ann and Kathryn. He described Phillip Charles as having “his own mind”, and that in denying contact by Phillip George, Ann and Kathryn he was only doing what Phillip Charles wanted him to do.[53]
[53]Transcript 539 and 543
90 Whether or not there is any truth in the allegation John prevented Phillip Charles from speaking to Phillip George, Ann and Kathryn, and whether he shouted orders at Phillip Charles from a quad bike is of little consequence. I do not consider these matters overly important, given that I have found that there is no substance in the allegations that John has suborned the Will of Phillip Charles. In any event, I accept the evidence of John on both of those issues that he uses the quad bike for a good reason, and it is Phillip Charles’ desire not to speak to Phillip George, Ann and Kathryn.
The principles of law – proprietary estoppel
91 I now turn to the authorities to examine what is sufficient to constitute a promise. In Flinn v Flinn,[54] Brooking JA, after referring to a large number of authorities on the subject, said:
“The defendant repeatedly contended that to found an estoppel a representation must be ‘unambiguous’, or ‘clear’, or ‘unequivocal’. The promise may be definite in the sense that there is a clear promise to do something even though the something promised is not precisely defined, and this has always been recognised in the cases.”[55]
[54][1999] 3 VR 712
[55]at 738, and the cases which his Honour analysed are at 738-744
92 Brooking JA appears to have placed particular emphasis on what was said in Ramsden v Dyson,[56] describing a statement of the law enunciated by Lord Kingsdown as an oft-quoted passage. The particular passage is instructive, because it demonstrates the analytical steps which a judge must take in determining whether there was a promise. He said:
“The rule of law applicable to the cases appears to me to be this: if a man, under a verbal agreement with the landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the face of such promise expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation … .”[57]
[56](1866) LR 1 HL 129
[57]at 170-171
93 There are a number of similar statements of the law in Giumelli v Giumelli,[58] Donis v Donis[59] and Harrison v Harrison.[60]Harrison was an appeal from the judgment of Kaye J,[61] whose judgement is very instructive. His Honour referred to a number of authorities, and in particular, the nature of the representation said to constitute a promise in order to determine what is sufficient to amount to a promise. The Court of Appeal approved of his Honour’s statement of the law and application of it to the peculiar facts before him.
[58](1999) 196 CLR 101
[59](2007) 19 VR 577
[60][2013] VSCA 170
[61]Harrison v Harrison [2011] VSC 459
94 Kaye J summarised the authorities which dealt with the question of the alleged uncertainty and ambiguity of the promise, and said:
“Thus, it is clear from the authorities that, in order to constitute the basis of a proprietary estoppel, a promise, and the expectations resulting from it, may fall substantially short of the precision which is required to constitute the basis of an enforceable contract at law. Rather, the question of the uncertainty or ambiguity of a promise is relevant to issues relating to reliance, the reasonableness of reliance, the nature of the expectations of the promisee, the awareness of the promissor of the reliance of the promisee, and the nature of the detriment sustained by the promisee, if the promise is not adhered to. At each of those levels, the terms in which the promise was expressed, and the specificity with which it was defined, may bear on the question whether, in all the circumstances, it would be unconscionable for the defendant not to adhere to the promise found by the court.”[62]
[62]at paragraph [384]
95 Kaye J referred to three particular authorities which are also instructive of the approach that I should adopt in interpreting the representation and whether it amounts to a promise. The first is Accurate Financial Consultants Pty Ltd & Anor v Koko Black Pty Ltd & Ors.[63] Dodds-Streeton JA said:
“134 … from an early stage, a representation in estoppel was to be assessed by how it would be reasonably understood by the addressee in the context of the surrounding circumstances.
135 Equity does not shrink from ascribing meaning to a representation and mere imprecision or loose definition will not preclude a remedy for unconscionability, at which proprietary estoppel is ultimately directed.
136The relevant authorities exemplify a wide variety of apparently vague, imprecise and incomplete representations which have been construed in context and given effect.”
[63][2008] VSCA 86
96 And later in her judgment, Dodds-Streeton JA said:
“177An analysis of the relevant authorities, which were not cited to his Honour, demonstrates that the statement of Lord Denning MR, on which the trial judge particularly relied, arose from a relatively narrow comparative context and is, in isolation, a potentially misleading articulation of equity’s characteristically liberal approach to the construction of representations when it is necessary to prevent unconscionable conduct.
178A representation which is insufficiently certain or complete to create a contract may found proprietary estoppel. Where necessary to inhibit unconscionability, equity will construe are presentation robustly in context, to determine its meaning as reasonably understood by the addressee. In my opinion, the standard of certainty, clarity and completeness required of the representation cannot sensibly be determined in isolation from other elements of proprietary estoppel in the circumstances of each particular case. Moreover, ambiguity and indeterminacy generated by the representor in the context of unconscionable conduct should not confer immunity from equity’s ‘long arm’.”
97 The next is Thorner v Major.[64]Lord Neuberger said:
“… it would be quite wrong to be unrealistically rigorous when applying the “clear and unambiguous” test. The court should not search for ambiguity or uncertainty, but should assess the question of clarity and certainty practically and sensibly as well as contextually … At least normally, it is sufficient for the person invoking the estoppel to establish that he reasonably understood the statement or action to be an assurance on which he could rely.” [65]
[64][2009] 1 WLR 776
[65]at 801
98 I should also refer to VanDyke v Sidhu,[66] because Mr Forbes submitted that it is the most recent authority in Australia relevant to what is sufficient to constitute a promise. He referred me to a passage in the judgment of Barrett JA in which his Honour said:
[66][2013] NSWCA 198
“40 The principles to be applied in determining the appellant's claim are not in dispute and were set out by the primary judge at [117] to [135]. As noted above, her Honour proceeded on the basis (at [135]) that the appellant had to establish the following to succeed in her estoppel claim:
(a) the making of a clear and unequivocal promise (such that it was objectively reasonable for the appellant to interpret the promise in a particular way and to act in reliance on that interpretation);
(b) that the respondent's promise caused the appellant reasonably to assume that a particular legal relationship existed between her and the respondent;
(c) that the appellant acted reasonably in reliance on the promise;
(d) that the respondent knew or intended that the appellant would act in reliance on the promise;
(e) that the appellant's reliance on the promise was to her detriment; and
(f) that the respondent acted unconscionably in not honouring the promise.”
99 It is to subparagraph (a) that I need to turn. The reference to the promise being “clear and unequivocal” has been referred to in most of the authorities which I have referred to thus far. The authorities I have reviewed seem to favour a less inflexible approach. To the extent that there is any inconsistency between Van Dyke and the other authorities to which I have referred, I propose to follow those other authorities. I think the statement in Thorner is most instructive, that is, it is sufficient to invoke proprietary estoppel to establish that the promisee reasonably understood the representation made by the promisor to be an assurance on which the promisee could rely even though the promise may be couched in less than clear and unequivocal language.
100 On my review of the authorities, it occurs to me that what underwrites the approach of equity in cases of proprietary estoppel is that most often the verbal exchanges said to contain a representation amounting to a promise occur between people who were often quite unsophisticated and whose command of language was often modest. What is clear to me is that if a representation amounting to a promise occurs in that sort of setting, it might work unfairness to the person relying on the promise where some level of sophistication demonstrating a “clear and unequivocal” promise is required. Hence, the reference by Dodds-Streeton JA to mere imprecision or loose definition not precluding a remedy for unconscionability, and apparently vague, imprecise and incomplete representations being construed as amounting to a promise with effect being given to such a promise.
No Promise/Reliance/Detriment
101 Phillip George sought to support his evidence of the promise principally through the evidence of Diane, Kathryn and Ann. They participated in conversations within the family which concerned how Doris and Phillip Charles intended to dispose of their assets upon their death. The conversations were consistently that the boys would get the farm and the girls would be provided for in some other way. Those conversations are not directly corroborative of what was said to Phillip George. My impression is that they were general conversations had within the family of the wishes of Doris and Phillip Charles falling well short of a promise to Phillip George.
102 In any event, Phillip Charles flatly denied that he made any such promise. Under cross-examination, it was put to him, firstly, that he said to Phillip George that “if you work the farm, the farm will be yours”. He denied saying that to Phillip George, and he added “why would one get something and the other four the children get nothing?”[67] Immediately following that question, he was asked whether he ever said to Phillip George that the farm would be his and John’s if “he” worked on the farm. His response was that he could not remember ever saying that.
[67]Transcript 456-457 in paragraph 37 above
103 The promise was first made to Phillip George when he was about twelve years of age. He said that it was then repeated for some years thereafter. It seems odd that Phillip Charles would make a promise to Phillip George when he was probably a relatively immature and unsophisticated boy. It makes it all the more likely that, if anything was said, it was said in conversation consistent with an expression of the wishes of Doris and Phillip Charles, falling well short of a promise.
104 I do not accept that what was said by Doris regarding her wishes, and what was said by Phillip Charles was a promise. In whatever form it was said, and however often it was said, it was never intended to be a promise. That is clearly the evidence of Phillip Charles, and evidence which I accept.
105 Even if what was said could be elevated to a promise recognised by the test articulated in the authorities, I am not satisfied that Phillip George relied on it.
106 Mr Forbes submitted that whatever I accepted regarding the work which Phillip George did on the farm after he left school, it was not consistent with detriment. Rather, it was more consistent with the manner in which Phillip George's life was inevitably going to unfold. I understood that to mean that it was likely that Phillip George would work on the farm, and then undertake labouring or factory work as his main occupation. Indeed, that is what happened. He submitted, in essence, that other decisions made by Phillip George regarding his employment with Uncle Ben’s and playing football were personal decisions he made not connected to any representation made by Phillip Charles.
107 Even if there was a promise, and even if there was reliance on it by Phillip George, I am not satisfied that he has demonstrated any material detriment.
108 I accept that Phillip George worked on the farm from 16 to 20 years. I accept that when he left the farm to work at Uncle Ben’s when he was about 20 years, that he continued doing some work on the farm, but I am not satisfied that he worked on the farm as extensively as he, Diane, and his other witnesses say he did. I prefer the evidence of Phillip Charles and John, that the frequency of the work he did and the quality of what he did on the farm was something less than Phillip George said was the case. In the end, I think there is some merit in the submission made by Mr Forbes that the work which Phillip George did on the farm, and continued to do on the farm secondary to his full employment, is rather more consistent with the way his life would have unfolded in the absence of the promise, and I think it is rather more consistent with the way in which the Rau family operated. The boys were expected to help on the farm, and the girls were expected to help run the household, even after they left school.
109 Phillip George was born in 1951. He left school in about 1967 when he was 16 years of age. Ann was born in 1946. She left school at the end of Year 10 when she was probably 16 years. That would have been in 1962. She earned £4.9.6 (four pounds nine shillings and sixpence),[68] or the equivalent of about $10. Joy was born in 1948. She left school when she was 15 years in about 1963. She earned $16 in 1966. Whilst there was no evidence of what a 16-year-old boy would earn in general work, it occurs to me that when Phillip George left school, that it would have been highly unlikely that he would have earned any more than Joy, and probably significantly less as a starting wage. I do not accept that the wage he was paid by Phillip Charles was less than what he would have earned elsewhere.
[68]Transcript 213
110 The other elements of detriment relied upon by Phillip George do not persuade me that they amount to detriment of a material nature. Phillip George said that he was offered a job at the new Bathurst plant of Uncle Ben's as a foreman. There was no evidence of the wage he would have earned if he had taken up that job to demonstrate the loss he suffered by not taking up the job. Similarly, whether Phillip George would have made the playing list at North Melbourne is purely speculative. He gave no evidence of his prospects at North Melbourne, nor any evidence of player payments, and what other employment he would have taken up in Melbourne, because no doubt he would have been required to live in Melbourne in order to train and to play with North Melbourne if he made its playing list.
111 Phillip George said that he worked on the farm while he was working at Uncle Ben’s. It was also the evidence of Diane, and of a number of other witnesses. Phillip Charles was not cross-examined at any length about whether Phillip George worked on the farm as extensively as the evidence of Phillip George and his witnesses suggested. He was asked whether Phillip George worked on the farm while working at Uncle Ben's. He said that Phillip George helped on the farm when he could and when it suited him.[69] John was cross-examined on the same subject. He said that Phillip George did not do much on the farm. He went out to the farm to get milk for his children and to speak to Phillip Charles. It was put to him that Diane accompanied Phillip George when he worked on the farm. He said that she did not accompany him often.[70]
[69]Transcript 462
[70]Transcript 536
Conclusions – the proprietary estoppel claim
112 In the end, I am satisfied that Phillip George and his siblings no doubt engaged in conversation within the family of the wishes of Doris and Phillip Charles regarding the farm and other assets, and to whom the same would be left on the death of Doris and Phillip Charles. I think Phillip George has elevated those conversations into something consistent with a promise which I find was never the case. In that respect, I repeat that I accept the evidence of Phillip Charles that he never made such a promise. Furthermore, I do not accept that there was reliance or detriment, for the reasons I have set out. It was really a case, I think, that Doris and Phillip Charles expected their children to help out, and if they did, the wishes which Doris and Phillip Charles had to leave them their assets was the likely outcome upon the death of Doris and Phillip Charles.
113 For the reasons set out above, the order I propose to make is that the plaintiff’s proceedings be dismissed.
The Further Amended Statement of Claim
114 Near to the conclusion of the trial, Mr Gillies applied to make a further amendment to the Amended Statement of Claim. I reserved my decision on the application. I refuse it.
115 The trial ran for a significant period of time before the application was made to amend the Amended Statement of Claim. I should add that Mr Phillips and Mr Forbes repeatedly objected to evidence which Phillip George proposed to adduce on the grounds of relevance, having regard to the manner in which the causes of action had been pleaded in the Amended Statement of Claim.
116 I permitted Phillip George to adduce all of the evidence in order to determine the extent to which any of it was relevant to the causes of action. I have said as much as I need to in the preamble to my reasons to demonstrate why the further amendment cannot be allowed. It was simply too late in the day, and potentially pleaded a different course of action, and I should add it was a pleading which was difficult to fit into the manner in which Phillip George conducted his case.
The counterclaim
117 John is the proprietor of the farm. Phillip George is not a tenant. His occupation of part of the farm is as a licensee. There was no issue about that between the parties.
118 John has given the plaintiff notice to vacate. Phillip George has refused to vacate the land. Again, there was no issue about that between the parties. Indeed, John gave evidence of the steps he has taken to have Phillip George vacate the land. Again, there was no issue about that between the parties. Therefore, the licence has been revoked.
119 In the absence of any defence to the application for possession, I propose to make an order that Phillip George give up possession of the land within sixty (60) days of the date on which I hand down judgment.
120 I will now hear from counsel relevant to the orders that ought to be made and any other matters which I need to address by orders.
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