Rhodes v Badenach
[2000] TASSC 160
•14 November 2000
[2000] TASSC 160
CITATION: Rhodes v Badenach & Anor [2000] TASSC 160
PARTIES: RHODES, Jonathon Keith
v
BADENACH, Robert John
NELSON, Alma Isobel as executors of the
estate of Sydney Lionel Richardson (deceased)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 883/1997
DELIVERED ON: 14 November 2000
DELIVERED AT: Hobart
HEARING DATES: 20 - 22, 25 - 29 September 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Equity - General principles - Rules and maxims of equity - He who seeks equity must do equity - Clean hands - Conditional order for equitable compensation.
Nelson v Nelson (1995) 184 CLR 538, applied.
Aust Dig Equity [1]
REPRESENTATION:
Counsel:
Plaintiff: G L Sealy
Defendants: K B Procter and S K Kempton
Solicitors:
Plaintiff: Piggott Wood & Baker
Defendants: Murdoch Clarke
Judgment Number: [2000] TASSC 160
Number of Paragraphs: 54
Serial No 160/2000
File No 883/1997
JONATHON KEITH RHODES v ROBERT JOHN BADENACH
and ALMA ISOBEL NELSON as executors of the estate of
Sydney Lionel Richardson (deceased)
REASONS FOR JUDGMENT BLOW J
14 November 2000
The plaintiff has sued the defendants for a declaration that they hold certain land at Sandford upon trust for him, orders requiring them to do all things necessary to transfer that land to him, and a number of alternative equitable remedies, including equitable compensation. He has sought those remedies on the basis of proprietary estoppel. The land claimed by the plaintiff has an area, by my calculations, of about 3,500 square metres. The improvements on it include a cottage ("the shack"), another residential building ("the bungalow"), and the greater part of a shed. The claimed land does not have a separate title, but is part of Lot 3 on sealed plan 27499. Lot 3 is the land comprised in Certificate of Title volume 27489 folio 3. The late Sydney Lionel Richardson was the registered proprietor of that lot prior to his death on 5 September 1996. The defendants are his executors.
The plaintiff went to live in the shack in September 1979. He did so by arrangement with its previous occupant, a Mr Ford, who had decided to move out. Mr Ford had been paying Mrs Richardson, the wife of the deceased, $80 per month by way of rent. She lived in the main farmhouse on what is now Lot 3, but Mr Richardson was not living there at the time. The plaintiff apparently did not consult anyone but Mr Ford before occupying the shack in place of him, but he commenced paying rent of $80 per month to Mrs Richardson, and she accepted that rent.
The land in question has been in the Richardson family for generations. In 1979, it formed part of 60 acres owned by the late Mr Richardson and his brother, William Henry Keith Richardson, as tenants in common in equal shares. The brother conveyed his share to two women, probably his daughters, by way of gift in 1982. In 1986, the 60 acres were brought under the Land Titles Act 1980 and subdivided by the registration of Sealed Plan 27499. Transfers were effected so that each of the two women received an 8.23 hectare lot and Mr Richardson received Lot 3 (16.37 hectares) and Lot 4 (839 square metres). His daughter, Susan Richardson, was living in a house on Lot 4. The transfer of that lot to her was contemplated. The land claimed by the plaintiff is adjacent to Lot 4. Lot 4, the land claimed by the plaintiff, and the balance of Lot 3 all have frontages onto Frederick Henry Bay. The high water mark is the boundary.
Essentially, the allegations made by the plaintiff are as follows:
(a)In about October or November 1981, a representation was made by Mrs Richardson to the plaintiff, in front of her husband and on his behalf, in the following words:
"Syd has just come back from town. He's put you in his will. Because of your interest, we are giving you the shack. Syd asked me to tell you this."
(b)For the rest of Mr Richardson's life, the plaintiff believed that Mr Richardson had left the shack to him in his will.
(c)That belief resulted from Mrs Richardson's words in 1981, and Mr Richardson's silence when she spoke those words.
(d)As a result of that belief, the plaintiff acted to his detriment by providing services to Mr Richardson from 1981 until 1996 without payment or other reward, by carrying out improvements to the shack and other parts of Lot 3, and by foregoing employment for many years.
(e)Mr Richardson at all times knew that the plaintiff, in rendering his services, making the improvements, and foregoing employment, was relying on what Mrs Richardson had said in 1981, and intended that the plaintiff should so act in reliance on what had been said.
(f)Mr Richardson departed from the representations made in 1981 by not making a will leaving the shack to the plaintiff.
(g)As a result of Mr Richardson departing from the representations made in 1981, the plaintiff suffered a detriment upon Mr Richardson's death that was more than trivial, in that he had received nothing in return for the services he rendered, the improvements that he made, or his foregoing of employment.
The defendants contended that the alleged words were never spoken; that the services rendered by the plaintiff and the improvements made by him were minimal; that he was only ever unemployed by choice; and that he had not suffered any detriment, particularly when his occupancy of the shack ever since 1981 was taken into account.
The alleged conversation in 1981
The plaintiff's evidence was that he and Mr and Mrs Richardson were the only people present at the time of the critical conversation. Mrs Richardson died in 1993. When a claimant in a case like this is the only survivor available to give evidence of an alleged conversation of critical significance, the claim must be very closely scrutinised: Flinn v Flinn [1999] VSCA 109 at par71. In this case, there are a number of reasons why I should be particularly cautious about accepting evidence given by the plaintiff.
The plaintiff was a dole cheat for many years. He received unemployment benefits from 1981 or earlier until June 1999, except during a couple of brief periods of full-time employment. He worked part-time at a restaurant from about 1980 to about mid-1982. He worked full-time as a chef at the Lenna Motor Inn for some months in or about 1984, part-time at a wine bar in Sandy Bay from October to December 1985, and full-time at a restaurant in Sandy Bay from October 1986 until about May 1987. Subsequently, he was involved briefly in the production of a couple of commercials, and did some sort of work at Incat for three days. He did not apply for any of these positions, but was offered them. Throughout the years that he was receiving unemployment benefits, he filled out forms regularly for the Department of Social Security. He conceded in cross-examination that he indicated on those forms that he was seeking employment. In fact, he did not ever seek employment prior to February 1999. Under cross-examination, he sought to justify his conduct by saying that Mr Richardson would not allow him to seek employment, that he was committed to Mr Richardson, that he relied on the unemployment benefit to live, that he "worked on the dole", and that he was learning skills on the dole. He claimed he was not content with that situation, but that that was how it had to be. Clearly the plaintiff was dishonest in his dealings with officers of the Department of Social Security for over 15 years and received many thousands of dollars as a result of his deception. However, it does not necessarily follow that he is prepared to commit perjury. No doubt a lot of Australians readily resort to dishonesty in their dealings with the Commonwealth in relation to such matters as income tax and unemployment benefits, while maintaining a double standard that requires them to be honest at other times.
The plaintiff lied to a food writer from the Mercury newspaper in September 1999. The newspaper published an article by that writer which included the following paragraph about the plaintiff:
"In the mid-'80s he took a break from cooking and raised santa gertrudis [sic] cattle. During this period one of his beasts took out Supreme Champion Cow at the Hobart Show."
It was Mr Richardson who raised Santa Gertrudas cattle, and who owned the beast that received the championship award. The plaintiff did no more than help Mr Richardson, who owned the cattle and apparently had considerable expertise in preparing them for shows. The plaintiff conceded in cross-examination that he had made the incorrect statements that appeared in the paragraph I have quoted. He attempted to justify himself, saying that, although he did not own the cow, it was his, in the sense that it was his to look after. However, it is one thing to give in to the temptation to overstate one's achievements, and another thing to seek to obtain property by means of perjury.
I believe that the plaintiff substantially exaggerated the extent to which he provided services for Mr Richardson during the period from 1981 to 1996. I will say more about this when I come to consider the question of detriment. I also take into account the fact that the plaintiff did not give his evidence in a satisfactory manner. He was often evasive or argumentative. But I think this says more about his nature or personality, rather than being an indication of dishonesty.
There are a number of aspects to the alleged conversation in 1991 which suggest that it was inherently unlikely that Mrs Richardson would ever have said the words attributed to her. The evidence that many witnesses have given about Mr Richardson establishes quite clearly that he was far from being the sort of sensitive new-age landowner who would entrust to his wife the delivery to the plaintiff of the information that he had decided to leave the shack to him in his will. It would have been very much out of character for him to have asked her to do that, though it occurs to me that he might not have wanted to make a promise personally if he intended not to keep it. Further, it would have been out of character for Mr Richardson even to have considered letting a piece of the land pass out of the family. There was evidence that he was proud that the property had been in the family since the time of the Crown grant. Both in his last will, which he made in November 1995, and in his previous will, made in August 1993, he expressed the desire that the property, including Susan Richardson's Lot 4, not pass out of the Richardson family. However, I have to consider the possibility that Mrs Richardson made a commitment to the plaintiff which Mr Richardson intended never to honour. He did make a will on 30 September 1981, at about the time of the alleged conversation, and made five more wills after that one, but none of his wills included any gifts to the plaintiff, or indeed to anyone outside his family, apart from the second defendant, who is the mother of two of his children.
The words attributed by the plaintiff to Mrs Richardson have an air of artificiality about them. In giving his evidence, he did not purport to recount the substance of the conversation, but to reproduce the exact words used. He repeated them in cross-examination, almost word for word. What he said seemed rehearsed. The final sentence ("Syd asked me to tell you this") was an assertion of agency suggestive of thorough but clumsy verballing. The words attributed to Mrs Richardson were somewhat inconsistent with what was pleaded about the alleged conversation in par3 of the amended statement of claim dated 11 September 1997, namely "Richardson's wife represented to the Plaintiff that Richardson had decided to bequeath the property to the Plaintiff". However it would be unfair to the plaintiff for me to take too hair-splittingly technical an approach. He is not a sophisticated individual, and should perhaps be forgiven for providing an unnecessarily and artificially precise account of the conversation. It does not necessarily follow that Mrs Richardson did not say words to the effect of those attributed to her.
The plaintiff has more than doubled the area of land that he is claiming. In the statement of claim filed with the writ in May 1997, and in the amended statement of claim of September 1997, the land claimed was described only as "a messuage situated within the land", that land being Lot 3. A messuage includes not only a building but also its curtilage, but neither the area of the curtilage he claimed nor its boundaries were specified in either pleading. It was only when the plaintiff's solicitor had a valuer, Mr Pitt, inspect the property in March 1999 that it became necessary for the plaintiff to define the area that he was claiming. For the purpose of Mr Pitt's valuation and inspection, he identified an area comprising about 1,500 square metres. In April 2000, the defendants' solicitors formally sought particulars of the area and position of the claimed land. For the purpose of providing these particulars, the plaintiff engaged a man with experience as a survey technician, Mr Jackson, to prepare a plan. Mr Jackson visited the site and prepared a plan which was incorporated into particulars that were delivered on 18 May 2000. He identified what he considered to be appropriate boundaries after some discussion with the plaintiff. He positioned the north-west boundary by reference to an old fence line and the internal wall of the shed I have referred to. He fixed the rear boundary by reference to a fence. He took the south-eastern boundary of Lot 3 and the boundary between Lot 3 and Lot 4 as the boundary on the south-eastern side. The result was that the claimed area had grown from about 1,500 metres to about 3,500 metres. This suggests greed and dishonesty on the part of the plaintiff. He uses a well that is located within the extra land included in Mr Pitt's plan, and there is a roadway that passes over a right of way over Lot 3 leading to Lot 4 and then veers off across the extra land before it reaches the land valued by Mr Pitt, but otherwise the evidence does not suggest that the plaintiff has been occupying, using or improving the extra land included in Mr Jackson's plan. He responded to cross-examination about his territorial aggrandizement with unshakeable self-righteousness. I believe he was too naïve to realise that anyone would accuse him of doing the wrong thing by choosing wider boundaries when Mr Jackson came to inspect the property than he had specified for the purposes of Mr Pitt's valuation. I infer that the solicitor who delivered the particulars did not notice that the claimed land had grown between the valuation and the preparation of the survey plan.
In addition to the plaintiff's failure to foresee that he might be criticised for more than doubling the area of land that he was claiming, there are a couple of other matters that suggest naïveté and optimism on his part to such an extent that one might wonder whether he has always been fully in touch with reality. By virtue of the City of Clarence Eastern Shore (Area 2) Planning Scheme 1986 ("the planning scheme"), Lot 3 cannot lawfully be subdivided so as to make the claimed land or any part thereof a separate lot. I will explain later why this is so. Whilst it would be possible to seek an amendment to the planning scheme so as to make such a subdivision lawful, there is absolutely no reason to think that the plaintiff, even with the co-operation of the defendants, would be likely to succeed in obtaining any such amendment. I raised the question of the appropriateness of the relief sought early in the trial, but the plaintiff persisted throughout in seeking the practically impossible ¾the transfer of the claimed land to him ¾and left his counsel in the embarrassing position of having to say that that claim was not abandoned, but that the subdivision simply could not be done and that the only real alternative was to award equitable compensation. No doubt the plaintiff's lawyers advised him that there was no chance of orders being made whereby he would receive the land he claimed, and no doubt he instructed them to persist in seeking such orders.
The evidence given by a Mr Prosser caused me similar concern. He seemed an intelligent, reliable and impartial witness. He was called by counsel for the defendants. He said that, shortly after Mr Richardson died, he visited the plaintiff who told him that "Syd had left the shack in his will to him and that he was going to go for it", and that he told him to keep his mouth shut, and that there would be something in it for him. Mr Prosser found these last comments meaningless, and replied to the effect that there was nothing the plaintiff could offer him that he would ever want. Under cross-examination, Mr Prosser said that, when Mr Richardson died, the plaintiff was in a bit of a panic over the fact that he had died without leaving the shack to him, and had said, "You remember when Syd told us, or told me or you, up on the deck, that he was leaving the shack to me", to which Mr Prosser said that he did not, and that Mr Richardson had never said that to him. The question of what damaging information, if any, Mr Prosser had was not fully explored in cross-examination or re-examination. The plaintiff had not been cross-examined about the conversation described by Mr Prosser. His counsel did not apply for him to be recalled at any time after Mr Prosser gave evidence. Although I do not have the benefit of the plaintiff's evidence as to the conversation described by Mr Prosser, I accept Mr Prosser's evidence. At best, the plaintiff at one time falsely believed that Mr Richardson had told Mr Prosser that he was leaving the shack to him in his will. At worst he was prepared to resort to dishonesty, but perhaps only on the day he spoke to Mr Prosser, to advance his claim.
I should mention at this point the evidence of a Mrs Lewis to the effect that the plaintiff telephoned her repeatedly for about six months, said he was going to contest Mr Richardson's will, asked her to say things that were untrue, asked her to contest the will, promised her the family home if she would lie for him, and said something about a technicality in the law that would enable him to grab the whole property. I do not accept her evidence. In my assessment she was so hostile to the plaintiff that she may well have been capable not only of interpreting anything said by the plaintiff in the worst possible way, but of adopting interpretations not warranted by his words. She may very well have been honest in recounting or summarising what she believed him to have said, but my impression of her is that she may well have been capable of irrationality, as well as having no objectivity.
Despite all the matters I have referred to so far which have caused me to view the plaintiff's evidence with considerable suspicion, there is a substantial body of evidence supporting the allegation that Mrs Richardson did say something to the plaintiff to the effect that Mr Richardson had decided to give him the shack and had done so in his will. First of all, a number of witnesses gave evidence to the effect that Mr Richardson had said the shack was the plaintiff's, or made similar comments to them.
A Mrs Hursey gave evidence that, in about March 1992, she and her husband went to live in yet another residence on Lot 3 which was known as "the caretaker's hut". Mr Hursey was one of a succession of caretakers who lived in that hut rent-free in return for doing some work on the property. Mrs Hursey said that, some months after they went there, Mr Richardson said to her husband that if he continued to work in the way he was and stuck by him, the same as the plaintiff had stuck by him for 14 to 15 years at the time, then the caretaker's hut would become their property "like, he'd already given the house that John [the plaintiff] was living in to John". Mrs Hursey was not shaken in cross-examination. She appeared to be impartial, honest and reliable.
A Mr McNally gave evidence for the plaintiff of a conversation in 1986 or 1987. At that stage the plaintiff's girlfriend, Miss Wulf, had just purchased a property near Nubeena, though Mr McNally apparently believed that that property was the plaintiff's. Mr McNally said that he asked Mr Richardson whether he thought that the plaintiff might go and live there, but that Mr Richardson replied that the shack was the plaintiff's place, that the plaintiff worked for him, that the shack was the plaintiff's, and that that was for his work. Mr McNally specifically remembered Mr Richardson saying that the shack was the plaintiff's for life. Mr McNally's evidence provides the plaintiff with only limited support, since the plaintiff's case is that he was led to expect that he would receive the shack absolutely, rather than a life interest in it, or permission to live in it for life. However, this evidence does support the plaintiff's claim that something was said to him about him receiving the shack. Mr McNally also struck me as an impartial, honest and reliable witness. He had apparently been a friend of the plaintiff in the past, but they lost touch years ago.
Counsel for the plaintiff led evidence from a Mr Waller who had been a council animal control officer and in 1995 had visited Mr Richardson in that capacity. He said Mr Richardson told him that the plaintiff deserved the shack because of all the work he had done. Whilst this conversation does not amount to evidence of any particular gift, promise or representation, it supports the plaintiff's claim to the extent that it is evidence of some degree of willingness on Mr Richardson's part for the plaintiff to have the shack, or for him to be seen as willing to let the plaintiff have the shack. I accept Mr Waller's evidence of the conversation taking place. I think he was an independent, honest and reliable witness.
A Mr Barratt gave evidence for the plaintiff. He was an old friend of Mr Richardson. He said he visited Mr Richardson at Christmas about 12 or 14 years ago and had a conversation in which he asked what would happen to the property at Sandford when Mr Richardson died. He said Mr Richardson replied, "I'm leaving the place for my worker. He could stop in it as long as he wants to, and the day that I die … he can have the house". He said he referred to the worker as "Johnno", a name which many witnesses used to refer to the plaintiff. There was some vagueness on Mr Barratt's part as to quite what the plaintiff was to receive. He seemed unsure as to whether Mr Richardson was referring to the main farmhouse or the shack, but was positive that he was not referring to the whole property. He was a truthful and independent witness. I accept that the conversation took place. As I think there was no reason for Mr Richardson to contemplate giving the plaintiff the main farmhouse, I infer that he was referring to the shack.
A Mr Trondl gave evidence for the plaintiff that in about 1995 he was visiting the plaintiff and heard a discussion between him and Mr Richardson concerning a dead tree near the shack that posed a threat and needed to be removed. He remembered Mr Richardson saying to the plaintiff something to the effect of, "It's your tree, therefore you pay for its removal". The plaintiff gave evidence that he did pay for its removal, but that Mr Richardson later reimbursed half the cost of its removal. Mr Trondl is a friend of the plaintiff, but I accept him to be an honest and reliable witness. The comment about the tree is no more than a scintilla of evidence, but it does weigh in favour of the plaintiff.
A Mrs Bleathman gave evidence for the plaintiff of a conversation with Mr and Mrs Richardson. She went to live with Mrs Richardson on the Sandford property as a companion in January 1979. She was working as a nurse at the time. Mr Richardson was generally absent from the property until some time in the latter half of 1981, after which he lived there permanently. Mrs Bleathman moved out at the end of 1981. She said that one evening, after she came home from work, she had a conversation with Mr and Mrs Richardson in the loungeroom, during which Mrs Richardson said that she was very happy because Mr Richardson had been to town that day, made his will, and "bequeathed the shack to Johnno". Mrs Bleathman said that Mr Richardson commented that the plaintiff had "saved the shack from the bulldozer", and that it was a derelict place before he took it over. Other evidence suggests that the bungalow was derelict, but that the shack was not. Under cross-examination, Mrs Bleathman volunteered that a Mr and Mrs Dickenson had visited the Richardsons the same night, and that they were told the same thing. The Dickensons had yet another shack on the property. Mrs Dickenson, a cousin of Mr Richardson, died in 1989. Mr Dickenson gave evidence. He is a remarkably alert and astute 91 year old. He said that nothing was ever said to him by Mrs Richardson, or in the presence of Mr and Mrs Richardson and Mrs Bleathman, about Mr Richardson leaving the shack to the plaintiff. I accept his evidence unreservedly. He would have remembered any such statement, since he had long wanted Mr Richardson to transfer the shack that he and he his wife occupied to them. Mrs Bleathman was independent and honest, but must have been wrong about what was said in Mr Dickenson's presence, at least. Under cross-examination, Mrs Bleathman was shown a document and conceded that in 1998 she had signed a statement to the effect that the conversation with the Dickensons took place at their shack, in the absence of Mr Richardson, at some time after the discussion in the Richardsons' loungeroom. She claimed that she had not checked her statement properly before signing it, and that it was plainly wrong. It seems that she has contradicted herself in relation to peripheral matters concerning the Dickensons, but there is no suggestion that the 1998 document contained anything inconsistent with the evidence that Mrs Richardson said her husband had left the shack to the plaintiff, nor the evidence of Mr Richardson confirming he had done that and explaining why. She was cross-examined as to the contents of a letter she wrote for the plaintiff's benefit in October 1996, which did not contain everything she said in her evidence, but I do not find any of the significant omissions surprising, given that she was the author and probably understood little at that stage as to what points were important. I have carefully considered her evidence because she has given two contradictory accounts of information given to the Dickensons, both of which must have been incorrect since I accept the evidence of Mr Dickenson in preference to hers.
The plaintiff gave uncontroversial evidence as to the arrangements for the payment of rent changing at the time of the alleged 1981 conversation. Thereafter, he ceased to pay any rent. After a time, he noticed that Mrs Richardson was short of money, and resumed paying her $80 per month, not by way of rent but way of a gratuity. Mr Richardson learned of these payments at some stage. The plaintiff ceased making monthly payments when Mrs Richardson died, and has not made any payments by way of rent or gratuity since then. He also undertook substantial unpaid work for Mr Richardson from 1981 to 1996, whereas his labours before September 1981 related exclusively or almost exclusively to improvements to the shack and the area around it. This history suggests that there was some sort of revision of the arrangements between the plaintiff and the Richardsons at the time of the alleged conversation.
Surprisingly, the plaintiff did not assert that Mr Richardson, or even his wife, ever repeated the alleged representation that he was being left the shack by will. One would expect that a testator and would-be beneficiary so closely associated as Mr Richardson and the plaintiff would have had some further conversation about the matter over a 15 year period apart from the words, "It's your tree". However, I believe there is a reasonable explanation for the absence of such conversation in this case. Many witnesses have painted a picture of Mr Richardson as a man of few words, not given to discussing his business at all. I expect the plaintiff was a young man who knew his place, and did not think it appropriate to initiate a discussion about his inheritance with his benefactor. I think this explains why he did not ever request a copy of the will or, apparently, seek to initiate a subdivision of the land he expected to receive.
Whilst the plaintiff's practice of obtaining social security payments by means of false representations can only be characterised as a fraud that extended over many years and gained him thousands of dollars, and whilst he undoubtedly lied to the Mercury's food writer, he did not strike me as the sort of person who would embark upon a fraudulent claim to a piece of land and pursue it as far as a trial over a period of years, even if he felt that he had some sort of moral justification for inventing a promise or representation that the land would be left to him. Further, if the plaintiff had set out to make a fraudulent claim, even allowing for his inexperience in matters of law and property, I expect that any story invented by him would have involved at least one express promise by Mr Richardson. If his evidence was invented, he must either have had a surprisingly thorough knowledge of the law of proprietary estoppel, or have happened to invent a story which by coincidence satisfied all the requirements of a proprietary estoppel claim. The plaintiff gave uncontradicted evidence that he phoned Mr Richardson's solicitor, Mr Drake, about a week after Mr Richardson's death to enquire about the contents of his will. Mr Drake's firm has represented the defendants in this action. That piece of evidence is strong confirmation that the plaintiff had an expectation of receiving the shack under Mr Richardson's will at that time. Given those circumstances, I do not believe that the plaintiff is pursuing a fraudulent claim. There, of course, remains the possibility that he has an honest but inaccurate belief as to what he was told in 1981 ¾that his memory or belief as to that conversation has somehow been affected by deluded thinking, wishful thinking, self-deception or some similar phenomenon. As will be seen, I have reached the conclusion, on the balance of probabilities, that that is not the case.
Mr Dickenson said that Mr Richardson was not educated, but that he was very shrewd at business. He certainly seems to have been. He seems to have taken every opportunity to get work done on his properties at no cost to himself. A number of witnesses worked on the planting of trees for windbreaks on the Sandford property. A succession of caretakers occupied the caretaker's hut on the Sandford property rent-free in return for work on the property. Similar arrangements were made by Mr Richardson with a number of caretakers on his property at Maydena. He was involved in scavenging useful materials from the Lauderdale tip. Most, if not all, of his caretakers were in receipt of social security benefits of one sort or another. When one of them found employment, Mr Richardson urged him to stay on the "rock and roll", ie, the dole. He made increasing demands on the Hurseys after they went to live in the caretaker's hut at Sandford. Mr Linnell, a caretaker on the Maydena property who gave evidence for the plaintiff, had a similar experience. Mr Richardson required Mr Devine, who gave evidence for the defendants, to vacate the Sandford caretaker's hut after living there for five years because he needed to have an operation on his feet and was not going to be of sufficient use to him during his convalescence. It seems that his shrewdness extended beyond business: he did not ever give any financial support to the second defendant, who bore and raised two of his children. There were times when Mr Richardson's shrewdness extended to the making of promises which he did not keep. He promised free meat to Mr and Mrs Synott, caretakers on the Maydena property who gave evidence for the plaintiff, but they did not ever receive any. He made and failed to keep a similar promise of free meat to Mr Brewer, a caretaker on the Sandford property who gave evidence for the plaintiff.
The plaintiff gave evidence, which I accept, as to improvements that he made to the area occupied by him in the first couple of years that he lived in the shack, prior to the alleged 1981 conversation. He landscaped the garden area on the front or seaward side of the shack. He established a vegetable garden. He made the bungalow habitable by removing the contents, rebuilding the roof, relining the roof and the walls, and replacing a rotten wooden section of floor with concrete. He connected water and electricity to the bungalow. He cleaned out his water tank. These improvements were not so substantial as to have been likely to induce Mr Richardson to leave the shack to the plaintiff by his will, but in my view they were sufficient to lead Mr Richardson to think that the plaintiff was a good worker and that it would be to his advantage for the plaintiff to remain living on the property indefinitely, doing as much unpaid work as Mr Richardson could get him to do. The evidence I have referred to as to Mr Richardson's shrewdness in the manipulation of others supports a conclusion that Mr Richardson went so far as to get his wife to lead the plaintiff to think the shack was being left to him by will in order to induce the plaintiff to stay on the property and do unpaid work on it. Of course, Mr Richardson only had a one-half share in the land as a tenant in common in 1981, but I do not think it would be a big step to infer that his shrewdness extended, not only so far as to create a false expectation of a gift by will on the part of the plaintiff, but also so far as to do that in a situation where the land in question was only half his to give.
As I have said, Mr Richardson certainly did make a will on 30 September 1981, though he made no provision for the plaintiff in it. I accept Mrs Bleathman's evidence that he had taken up residence in the farmhouse at Sandford following a trip to the USA in the winter of 1981. In the light of the unshaken and uncontradicted evidence of Mrs Hursey, Mr McNally, Mr Waller, Mr Barratt and Mr Trondl, the fact that Mrs Bleathman and the plaintiff have similar accounts of conversations with Mrs Richardson in the presence of Mr Richardson, and the other matters favourable to the plaintiff that I have referred to, I accept that Mrs Richardson told both the plaintiff and Mrs Bleathman that her husband had made a will leaving the shack to the plaintiff. As far as I know, Mrs Richardson had no reason to lie. I think that Mr Richardson, a very manipulative individual by all accounts, must have taken his shrewdness further than usual. I accept that his regard for the Richardson family, the land at Sandford, and the relationship between the family and the land was so strong that the idea of leaving the shack to the plaintiff by will was, at most, a kind idea that he decided not to implement. I think it more likely that he never intended the plaintiff to own the shack. I infer that he decided to let the plaintiff live in the shack indefinitely, provided he continued to work around the property, and that he decided to encourage the plaintiff to stay and work by having him think that the shack was to become his. In telling Mr McNally only that the shack was the plaintiff's for life, he was renèging to a degree, but that was not out of character.
Reliance and knowledge thereof
Between the conversation in 1981 and Mr Richardson's death in 1996, the plaintiff undoubtedly carried out a significant amount of work on the Sandford property, by no means confined to the shack and the surrounding area occupied by him. He also did some work on Mr Richardson's Maydena property. He helped Mr Richardson look after cattle that were run on the Sandford property. This work included preparation of cattle for market and for shows, and assisting in the delivery of calves. However, the herd was small and others sometimes assisted. The plaintiff claims that his cattle husbandry work took up at least eight hours per week, but I reject that claim as substantially exaggerated. The plaintiff also did some general maintenance work and some general farmhand work. He claims that such work took up at least 20 hours per week, but I consider that estimate is also substantially exaggerated. No doubt the plaintiff had a capacity for hard work and worked very hard at times, but the farming enterprise at Sandford was a small one, there was generally a caretaker to assist Mr Richardson, others apart from the plaintiff did some of the work, and the evidence suggested that the farm work was approached at a leisurely pace, with Mr Richardson spending a lot of time drinking cups of tea with the plaintiff and others and discussing in a most unhurried manner the things that needed to be done around the farm. Often both the plaintiff and Mr Richardson would go to Maydena when only one of them needed to go. I accept that in some respects the plaintiff managed the Sandford property when Mr Richardson was away, as he often was. Mr Waller and Mr Hunniford gave evidence that supports the plaintiff in this respect. I accept also that the plaintiff, mainly on his own, carried out substantial works constructing a sea wall out of old tyres and rocks to prevent the erosion of sand dunes along about 50 metres of the sea boundary of Lot 3, a part of which was the sea boundary of the area occupied by the plaintiff. It was a big job building that wall and planting grass, but it was all the plaintiff's idea and he succeeded in stabilising the dunes and stopping erosion. There were times when the plaintiff drove Mr Richardson about, particularly in the later years of his life, but I reject as badly exaggerated the plaintiff's claim that this driving took him at least five hours per week from 1986 onwards. I accept that the plaintiff also spent substantial time working on the erection of a water tank, the installation of electrical wiring, the installation of pipes, the installation of bores, the construction and wiring of sheds, the planting of trees in windbreaks, the installation of piping and watering systems for the windbreak trees, road maintenance, and painting.
A great deal of time was spent at the trial on the question of the extent of the unpaid work done by the plaintiff between 1981 and 1996. A large number of witnesses gave evidence as to this issue. Not surprisingly, they had conflicting recollections, perceptions and observations. Different people who were on the property at different times saw different things. Those who had done unpaid work on the property themselves, perhaps influenced by pride in their own contributions, tended to say that they had not seen the plaintiff do very much, but other witnesses perceived him to have been working hard, and to have been treated by Mr Richardson like a manager, and like a son. Significantly, when the plaintiff was cross-examined about the tasks that he undertook, the ones that he was able to list fell far short of accounting for the sorts of hours that he claimed to have spent working on the property. One must make some allowance for the fact that such cross-examination involves a test of memory, and that the plaintiff might well have undertaken other tasks that he was not able to recall when put on the spot. However, the gap between the claimed hours and the described activities was so great that the plaintiff must have been exaggerating to a great extent. It is also significant that the plaintiff spent time on interests of his own, particularly working on old cars, as well as working on the property at Nubeena that was purchased in Miss Wulf's name in 1985.
I do not think a more detailed analysis of the evidence as to what the plaintiff did and did not do is warranted. My general impression is that the plaintiff's unpaid work for Mr Richardson at Sandford and Maydena was substantially less than full-time work, but that on the average, over 15 years, he worked a significant number of hours per week, generally at a relaxed or unhurried pace. Mr Devine estimated that the plaintiff worked roughly about an hour per day, or sometimes two hours per day, on the property. Another former caretaker, Mr Briers, estimated that the plaintiff worked about 10 hours per week on the property. I expect that neither of them was fully aware of how much work the plaintiff was doing for Mr Richardson, and that they have therefore underestimated his hours, but not by much.
I have no doubt that Mr Richardson, whilst not being aware of precisely how much work the plaintiff was doing, nor precisely what he was doing and when, must always have known, generally speaking, how much unpaid work the plaintiff was doing for him, and how well the plaintiff was looking after the shack and the surrounding area. I have no doubt that it was always in accordance with Mr Richardson's wishes that the plaintiff did as much work as he did, and that Mr Richardson was conscious that the plaintiff understood the arrangement to be that, in return for his unpaid work, he could live in the shack and would be given it by will when Mr Richardson died.
Detriment
The plaintiff contends that, as a result of Mr Richardson not leaving him the shack in his will, he has suffered detriment. In cases like this the detriment suffered is not necessarily to be equated with the loss of the property that a plaintiff expected to receive. It is the detriment flowing from the plaintiff altering his position on the faith of an assumption ¾in this case the assumption that he was to receive the shack under the will ¾which assumption is later deserted or abandoned. The detriment is to be judged or assessed by reference to the position at the moment when the assumption was deserted or abandoned ¾in this case the moment when Mr Richardson died without leaving the shack to the plaintiff. See Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674 - 675; Public Trustee v Wadley (1997) 7 Tas R 35; Osborne Park Co-Operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77 at 101 - 102.
The plaintiff's case is that, as a result of relying from 1981 until 1996 on the assumption that Mr Richardson was leaving the shack to him in his will, he suffered detriment in working for Mr Richardson without pay, in making improvements to the shack and the surrounding area, and in foregoing paid employment from 1985 onwards. The evidence suggests that the plaintiff did not spend any significant amounts of money on any improvements to the shack and the surrounding area, though he did spend a little money on paint and other materials. His substantial contentions are that he provided many hours of free labour and refrained from seeking employment.
The plaintiff is a chef. Mr Prosser, a restaurateur, worked with him in three different restaurants between 1980 and 1987, and regarded him as talented. His work from 1980 until mid-1982 was for Mr Prosser, his brother and mother at Stucci's restaurant as a casual second chef. He was mainly working on Friday and Saturday nights. He also worked full-time as a second chef in the restaurant at the Lenna Motor Inn for some months, being dismissed by Mr Prosser at the request of the management in 1984. He worked two nights per week at Nickleby's, a wine bar in Sandy Bay, from October to December 1985. He worked for Mr Prosser and his mother in a restaurant which they opened in October 1986, from the opening until May 1987. He worked full-time there assisting Mr Prosser in a position like that of a second chef. According to the plaintiff, he resigned because Mr Richardson was going away for a winter holiday and wanted him to be on the farm during his absence. He said Mr Richardson wanted him to go to the Maydena property once per fortnight while he was away, to oversee that property. The plaintiff did not do any paid work again until February 1999, when he was approached by the proprietor of a bar and café and engaged on a part-time basis. His hours grew, so that in June 1999, his income was such that he ceased to satisfy the income test for his Newstart allowance, and finally ceased to receive that allowance. He now works as a chef as an independent contractor on a freelance basis.
In my view, the plaintiff remained out of the paid workforce more as a matter of personal choice than as a result of any desire to do the right thing by Mr Richardson in consequence of the assumption that the shack would be left to him by will. The very nature of the work of a chef, and of other work in restaurants, is that it can be done in the evenings. Since the unpaid work that the plaintiff undertook for Mr Richardson did not occupy him full-time, since it could be done at a leisurely pace, and since there was substantial flexibility as to when it could be done, it was open to the plaintiff to seek evening restaurant work but, for most of the 15 years in question, the plaintiff chose not to seek or do any paid work. If he had worked full-time in restaurants, he might not always have been able to do all that he felt he should do for Mr Richardson. However, he could have earned a significant income working part-time, if not as a chef then in some less prestigious position. To the extent that work as a chef might not always have been readily available in the evenings, it would not have been inappropriate for the plaintiff to have done other restaurant work if he was choosing to give priority to his perceived obligation to Mr Richardson. The fact that he did so little paid work during the relevant 15 years, and none in 1997 or 1998 after Mr Richardson had let him down, indicates very strongly that he preferred to opt for a lifestyle which did not involve paid work. He preferred to remain unemployed, receive unemployment benefits, take life easy, and do unpaid work at a relaxed pace, mainly for Mr Richardson, but also to some extent for the benefit of himself and Miss Wulf, who became his partner in his personal life. Had nothing been said to him in 1981, I expect that his earnings from employment over the 15 years in question would have been similar to, or not much greater than, his actual earnings during that period. I am not satisfied that he suffered any significant detriment by way of loss in reliance on the 1981 representation.
Whilst I believe the plaintiff's claims as to the number of hours he worked for Mr Richardson from 1981 to 1996 are substantially exaggerated, I accept that he did a significant amount of unpaid work for Mr Richardson practically every week during that period. Conservatively, and doing the best I can on the available evidence, I estimate that in an average week he did what a paid worker would take something like 12 hours to do. He thereby acted to his detriment in a way that was much more than trivial.
Mr Richardson and his estate have been unjustly enriched in that they have received the benefit of the improvements that the plaintiff made to the shack and the surrounding area, and have received the benefit of the plaintiff's unpaid services. It is true that the payments of $80 per month made by the plaintiff were lower than a reasonable market rent for the buildings and land occupied by him. I do not have any evidence that enables me to say how much lower. Given that his main building was no more than a small beachside shack, I am reasonably satisfied that a reasonable market rent for the relevant land and buildings would have been less than a farmhand's net earnings for 12 hours per week. I am therefore satisfied that Mr Richardson and his estate have been unjustly enriched, even taking into account the accommodation benefits provided to the plaintiff during the relevant years.
Thus, all the ingredients of the plaintiff's claim, as listed in par4 above, have been established to my satisfaction. It remains for me to consider whether relief should be refused on a discretionary basis and, if not, to consider what relief is appropriate.
Illegality and unclean hands
During the trial, I raised with counsel the question of whether the plaintiff should be refused relief as a result of having obtained unemployment benefits by means of false representations that he had been seeking work. It occurred to me that it might be arguable that his receipt of unemployment benefits had been fraudulent; that, but for the receipt of those benefits, he would not have been in a position to do his unpaid work for Mr Richardson; and that the relief he was seeking could be characterised as the fruits of a scheme which depended upon his fraudulent receipt of unemployment benefits. During the trial, the defence was amended to plead that the plaintiff should be refused relief on the ground that he was enabled to refrain from seeking employment and to render his services to Mr Richardson by reason of the fact that he at all material times received unemployment benefits when he was not lawfully entitled to do so. Although I have concluded that the plaintiff did not suffer any significant detriment in reliance on the 1981 conversation by foregoing employment, to the extent that he did, after that time, I believe there was still a significant connection between his social security fraud and the arrangement whereby he did unpaid work for Mr Richardson in the expectation of receiving the shack. Since, having decided to work for Mr Richardson without pay, it was essential to living life in that way that he was able to subsist on unemployment benefits.
It is significant that there was nothing illegal or contrary to public policy in the arrangement whereby the plaintiff did unpaid work for Mr Richardson in the expectation of receiving a benefit under his will. But, in the way that I have explained, that arrangement was associated with contraventions of Commonwealth statutes, namely the Social Security Act 1947 and, after its commencement on 1 July 1991, the Social Security Act 1991. The 1947 Act was repealed with effect from 1 July 1991. The 1991 Act does not contain any provision giving the Commonwealth any legal or equitable interest in property obtained as a result of an overpayment of social security benefits, nor any provision as to the enforceability by a social security recipient of the sorts of rights that the plaintiff is seeking to enforce in these proceedings. Extensive provisions as to the assessment and recovery of overpayments of social security benefits are contained in the 1991 Act, Pts5.2 and 5.3.
The High Court held in Nelson v Nelson (1995) 184 CLR 538 that there is no general proposition that, in a case of illegality consisting of the contravention of the policy of a statute, equity will let the loss lie where it falls. In that case, a woman had paid the purchase price of a house, which was purchased in the names of her son and daughter so that she could subsequently buy another house and pretend to be entitled to a subsidy under the Defence Service Homes Act 1918 (Cth). She purchased a second house and obtained such a subsidy. The first property was sold, whereupon a dispute developed between her and her daughter as to whether the daughter was entitled to half the proceeds of sale. The High Court decided that it was appropriate to grant relief, but made declarations subject to requirements that the mother pay to the Commonwealth the amount by which she had benefited as a result of her unlawful conduct. Dawson and Toohey JJ dissented on the basis that the appropriate course was for the Commonwealth to pursue its own remedies. McHugh J, who was a member of the majority, made the following statement of principle at 613:
"… courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless: (a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or (b)(i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and (iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies."
In a footnote his Honour added, "Elements (ii) and (iii) may often overlap".
The passage I have quoted was cited with approval in Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 by McHugh and Gummow JJ, at 230, and by Kirby J, at 250.
As I have said, the 1991 Act does not disclose an intention that the sorts of rights the plaintiff is seeking to exercise in this case should be unenforceable in all circumstances. Paragraph (a) of the quoted passage therefore does not apply. I do not think subpar(b)(ii) applies either. Because of the comprehensive provisions in the 1991 Act as to the assessment and recovery of overpayments, I do not believe the imposition of the sanction of refusing equitable relief is necessary to protect that Act's objects or policies. None of the members of the High Court thought that such a refusal was called for in Nelson, but the majority decided that the granting of declaratory relief should be conditional on the basis that the plaintiff in that case, as a person seeking equity, should do equity. At 571, Deanne and Gummow JJ said:
In our view, as the price of obtaining the relief she seeks for the recognition and enforcement of a resulting trust in respect of the whole of the balance of the proceeds of sale of the Bent Street property, Mrs Nelson must be prepared to do equity according to the requirements of good conscience. That may involve consideration of more than the interests of the parties to the litigation. Here, good conscience calls for the taking by Mrs Nelson of steps sufficient to satisfy the demands of the underlying policy of the Act.
This requires denial to Mrs Nelson of the benefit in respect of the purchase of the Kidman Lane property which she has obtained by her unlawful conduct."
At 617, McHugh J said:
"Of course, equity cannot condone Mrs Nelson's unlawful purpose or encourage it. So far as is possible, rights associated with or arising out of unlawful conduct should only be enforced on condition that the wrongdoer takes all lawful steps to overcome the consequences of that conduct. It will not always be possible for the claimant to do so or for the courts to impose terms designed to remedy the wrongdoing."
Largely because the benefit that had been obtained was readily ascertainable, the majority decided that declaratory relief should be granted conditionally upon the amount of the benefit being assessed and repaid.
In this case, the task of quantifying the amounts recoverable by the Commonwealth from the plaintiff is one of some complexity. Letters were tendered by consent at the trial showing the amounts received by the plaintiff in each financial year from 1985/86 onwards, but there may be some problem as to the availability of information relating to the period before 1 July 1985. Under the 1991 Act, s1232, a six-year limitation period applies to legal proceedings for the recovery of a debt due by a social security recipient to the Commonwealth as a result of the making of a false statement or a false representation. However, under s1232(3), the limitation period does not commence to run until "the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances giving rise to the debt". I do not know whether or not there is any chance that a dispute might arise between the plaintiff and the Commonwealth as to when a Departmental officer first became aware, or could reasonably have been expected to become aware, of the plaintiff's false statements. The six-year limitation period does not apply to the recovery of an overpayment debt by means other than legal proceedings, such as garnishee notices under s1233. Decisions as to the recovery of overpayments can be reviewed: first internally under s1243, then by the Social Security Appeals Tribunal under Pt6.2, and then by the Administrative Appeals Tribunal under s1283. Thereafter, there is a right of appeal to the Federal Court: Administrative Appeals Tribunal Act 1975 (Cth), s44.
This is not a case where it is impossible, or too difficult, to formulate a condition by which the plaintiff can be required to do equity in order to obtain equitable relief. However, unlike Nelson, this is not a case where all that is required is one simple and uncontroversial calculation. In the circumstances, I think it would be inappropriate to refuse the plaintiff relief, but that the granting of relief ought to be conditional upon (a) the plaintiff's solicitors being required to send to the officer in charge of the Hobart office of the Department of Family and Community Services (the department that administers the Social Security Act 1991) a copy of these reasons and a copy of pp175 - 192 of the transcript of the trial (the plaintiff's cross-examination as to his earnings and his unemployment benefits); and (b) the plaintiff undertaking to the Court to pay to the Commonwealth from the proceeds of this action such sums as are recoverable from him pursuant to the Social Security Act 1991 (Cth) in consequence of false statements or false representations made by him in connection with payments of unemployment benefits and Newstart allowance between 1 September 1981 and 5 September 1996.
Remedies
If a plaintiff in a proprietary estoppel case persuades a court of equity that the most appropriate form of relief is an order for the transfer to him of part of a property, and subdivision approval from a local authority is necessary before such a transfer can be effected, the court can make orders requiring the registered proprietor of the land to seek the necessary approval, and granting liberty to apply in the event that it cannot be obtained. The Full Court of the Supreme Court of Western Australia took such a course in Giumelli v Giumelli (1996) 17 WAR 159. The High Court set aside the relevant orders on the basis that an order for compensation was the appropriate remedy on the facts of the case, whilst holding that there was no doctrinal reason why such orders should never be made: Giumelli v Giumelli (1999) 196 CLR 101 at 125, 127.
In this case, the plaintiff is seeking orders for the transfer to him of an area comprising about 3,500 square metres. Under the planning scheme, the land is in an area which has the subdivision density rating DR2. As I have said, the area of Lot 3 is 16.37 hectares. Under the planning scheme, Sch2.2, the minimum size of each new lot in a subdivision in an area with the density rating DR2 is 10 hectares, subject to two qualifications. Firstly, where three or more new lots are created, it is possible to create new lots of less than one hectare, and between one and two hectares, in area. Secondly, under cl 3.2.5A, the council has a discretion to consider a variation in density in respect to one lot, provided that that variation is no greater than 0.5 hectares. The result is that Lot 3 is too small to subdivide. An amendment to the planning scheme would be necessary before the plaintiff could get the subdivision that he wants. Whilst there are statutory mechanisms for such amendments, there is no reason to think that any such amendment could be obtained, even with complete co-operation on the part of the defendants. In my view, therefore, the only appropriate remedy is an order for the payment of compensation, and an order charging Lot 3 with the payment of the compensation.
There must be "a proportionality between the remedy and the detriment which is its purpose to avoid": Commonwealth v Verwayen (1990) 170 CLR 394 per Mason CJ at 413. I am required to determine "the minimum equity to do justice to the plaintiff": Crabb v Arun District Council [1976] 1 Ch 179 per Scarman LJ at 198; Verwayen (supra) at 411, 429, 454, 475 - 476 and 487; Public Trustee v Wadley (supra) at 47, 59.
The upper limit of the compensation that can be awarded to the plaintiff must be the value of the shack and its ill-defined curtilage. Mr Pitt gave unchallenged evidence that in his opinion the area of about 1,500 square metres originally claimed by the plaintiff was worth $140,000 (of which $20,000 was attributable to the improvements, including the shack), both at the time of Mr Richardson's death in September 1996 and at the time of his inspection of the property in March 1999. He assumed for the purposes of his valuation that the land then claimed could be transferred as a separate property, but that was not the case and is not the case. If the land in question were valued as a component of Lot 3 not capable of separate transfer, its value would be somewhat less. I do not know how much less. The only evidence I have as to the value of Lot 3 as a whole is that as at 1 January 1995, the Government valuation for rating and taxing purposes was $275,000. That figure included the value of improvements. The unclaimed balance of Lot 3 must always have been worth more than the claimed land, since the unclaimed balance comprised a greater area and had more buildings on it, including the principal farmhouse. It also had a longer frontage onto Frederick Henry Bay.
Copies of relevant industrial awards were tendered as exhibits, and I was provided with calculations based on those awards. The calculations were unchallenged and appear to be accurate. They reveal that, had the plaintiff worked full-time as a casual farmhand from 7 May 1981 until 5 September 1996, his gross earnings would have been $213,389.90. They also reveal that if he had worked full-time as a second chef or relief cook, without any penalties or overtime, from 14 January 1983 until 1 November 1996, his gross earnings would have been $244,168.30. These figures are the only yardsticks available to me for the purpose of assessing compensation. The figures in relation to farmhands are more appropriate as a starting point, given my findings in relation to the claim as to the plaintiff refraining from seeking employment. I see no reason why I should use casual earnings, rather than the earnings of a hypothetical permanent employee, as a starting point. At all material times, casuals were entitled to be paid 20 per cent more than equivalent permanent employees. There should be a discount accordingly. There should be a further discount to allow for income tax. I think it is also appropriate to take into account the benefit that the plaintiff received by way of low-cost accommodation. I think in fairness to him that the $80 per month that he paid to Mrs Richardson from 1981 to 1993 ought to be taken into account in his favour. His improvements to the shack, the bungalow, and the surrounding area since September 1981, must also be taken into account in his favour. There must also be a substantial discount because the plaintiff, in my view, on average, did what a paid employee would have spent something like 12 hours per week doing. A "broad brush" approach is unavoidable, since I cannot be precise as to the number of hours the plaintiff worked, nor what a reasonable market rent for the shack would have been from time to time. Doing the best I can, I conclude that, when Mr Richardson died on 5 September 1996, equity would have been done if the plaintiff had then been paid $35,000.
During final addresses, counsel for the plaintiff sought to claim interest on any such sum that I might award. I said that I would invite further submissions as to interest if I decided compensation should be awarded, but that I would also wish to consider making any order for the payment of interest conditional upon the plaintiff paying the defendants an occupation rent, he having occupied the shack and the surrounding area ever since Mr Richardson died without paying anyone any rent.
For these reasons, my orders are as follows:
1 That within 21 days the solicitors for the plaintiff send to the officer in charge of the Hobart office of the Department of Family and Community Services (Cth) a copy of these reasons and of pp175 - 192 of the transcript of the trial of this action.
2 That, subject to the plaintiff undertaking to the Court to pay to the Commonwealth such sums as are recoverable from him pursuant to the Social Security Act 1991 (Cth) in consequence of false statements or false representations made by him in connection with payments of unemployment benefits and Newstart allowance between 1 September 1981 and 5 September 1996, the defendants pay from the estate of the late Sydney Lionel Richardson to the plaintiff the sum of $35,000.
3 That the parties have liberty to apply as to:
(a)interest on the said sum of $35,000;
(b)the payment by the plaintiff to the defendants as executors of the estate of the late Sydney Lionel Richardson of an occupation rent in respect of his occupation of part of the land comprised in Certificate of Title, volume 27499 folio 3 since 5 September 1996.
4 That the said land be charged with the payment of the said sum of $35,000 to the plaintiff, and with the payment of any interest that may be ordered to be paid in respect of the said sum.
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