Savage v Rogers
[2014] NSWSC 41
•12 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Savage v Rogers [2014] NSWSC 41 Hearing dates: 13, 14, 15 and 16 May 2013 Decision date: 12 February 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: (1) Subject to Order 2, order that the proceedings be dismissed.
(2) Order that Caveat No AF813035 be withdrawn forthwith.
(3) Order that Graham Savage pay the defendant's costs of the proceedings.
Catchwords: ESTOPPEL - Equitable estoppel - Proprietary estoppel - not established Legislation Cited: Civil Procedure Act 2005 NSW s 90
Evidence Act 1995 NSW
Powers of Attorney Act 2003 NSW
Real Property Act 1900 NSW
Uniform Civil Procedure Rules, r 36.1
Uniform Civil Procedure Rules 2005 NSWCases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Giumelli v Giumelli (1999) 196 CLR 101
Muschinski v Dodds (1985) 160 CLR 583Texts Cited: - Category: Principal judgment Parties: Derek Ernest Savage, by his tutor Graham Savage (First Plaintiff)
Graham Savage as representative of the estate of the late Betty Savage
Denise Rogers (Defendant)Representation: Counsel:
MW Sneddon with CH Cassimatis (Plaintiffs)
JS Drummond (Defendant)
Solicitors:
Hills Legal (Plaintiffs)
Bateman Battersby (Defendant)
File Number(s): 2011/00019219
Judgment
INTRODUCTION
These proceedings are a contest, ostensibly, between one generation of a family and the next but, in large measure, they are in reality a contest between members of the second generation, a brother (nominally representing his parents) and his sister, the registered proprietor of land at Kings Langley in which an interest is claimed on behalf of the parents.
At the time the proceedings were commenced, by a summons filed on 20 January 2011, both plaintiffs (the parents) were alive, but aged.
The first plaintiff (Derek Savage) was not then represented by a tutor. However, with his decent into dementia, the necessity for a tutor became apparent. By an order made on 12 November 2012 his son Graham was appointed to act as his tutor.
Graham has represented the interests of his mother (Betty Savage), nominally the second plaintiff, from the outset of the proceedings. She had suffered from dementia for several years earlier than that time. Graham was named as her tutor in the summons. Following her death on 8 August 2012, the Court, on 12 November 2012, made an order (pursuant to the Uniform Civil Procedure Rules 2005 NSW, r 7.10(2)(b)) to the effect that he represent her estate for the purpose of the proceedings.
She died without any property of substance (save for such, if any, interest in land as may be established in these proceedings), as a consequence of which it was expedient for a representative order to be made in lieu of a more expensive procedure for a grant of representation in exercise of the Court's probate jurisdiction.
Her last known will (dated 15 September 2004), not admitted to probate, effectively left to her husband, the first plaintiff, the whole of any estate she had.
The parties are agreed that, like his wife, the first plaintiff made a will on 15 September 2004, upon which date he also executed a General Power of Attorney in favour of Graham and the defendant jointly and severally.
The copy of the Power of Attorney in evidence is expressed to endure beyond a loss of mental capacity on the part of the first plaintiff as donor, but it does not include the certification required by s 19 of the Powers of Attorney Act 2003 NSW for it to take effect as an enduring power of attorney. It may be that the copy is incomplete. Nothing turns on it in these proceedings. It is relevant only because it is evidence of the state of family relationships between the first plaintiff, Graham and the defendant in 2004.
So far as is material, the first plaintiff's will of that time nominates Graham (and, failing him, the defendant) as the first plaintiff's legal personal representative) and leaves his estate to his four children as tenants in common in equal shares.
The evidence suggests that, despite the current proceedings, the defendant maintains a dutiful relationship with her father.
It is common ground (as I confirmed by personal observation upon his formal appearance before the Court for that purpose) that he is now beyond everyday understanding. He has been resident in a nursing home since December 2012.
The family tensions that have culminated in these proceedings gathered pace in and after 2007 as the defendant and her current husband (Derek Rogers) contemplated a move to Queensland to be with their son, and as they struggled to deal with financial pressures arising from illness suffered by Mr Rogers. The defendant, wanting or needing to realise her investment in the Kings Langley land, pressed her parents to give up possession of it. Her father declined to give it up.
As events unfolded, the mother moved into a nursing home in 2008, and the father remained in possession until he too required nursing home accommodation in 2012.
The rising tensions within the family are evidenced by a will purportedly made by the first plaintiff on 16 March 2010. The material difference between that document and the 2004 will is that it provides for the first plaintiff's estate to be left only to his three sons, with no provision made for the defendant. Nevertheless, as in the 2004 will, the defendant remains his nominee as a legal personal representative, ranking behind Graham.
The validity of the first plaintiff's wills has not been litigated, or tested, in these proceedings. I make no finding, one way or the other, about their validity. I note their respective dates, and terms, only as evidence of the nature and course of personal, family relationships.
The evidence adduced in these proceedings suggests that (but for a want of property to warrant a stoush) there may, in the fullness of time, be a dispute within the family about the validity of the 2010 will.
If that should be the fate of this family, that is a dispute that will have to be determined on its merits at that time. Nothing said in this judgment about the first plaintiff's competence to affirm affidavits relied upon, effectively by Graham as the representative of his parents, in these proceedings is intended to bear upon the testamentary capacity of the first plaintiff at earlier times. The earliest of those affidavits is dated 18 January 2011.
Although the residential address of the first plaintiff, recorded in each of the wills made or purportedly made by him, is the address of the Kings Langley land, and the powers conferred on his legal personal representative by each will are expressed in terms consistent with his owning real estate at the time of his death, neither the 2004 will nor the 2010 will casts any light, one way or the other, on the questions that have been litigated in these proceedings about ownership of the Kings Langley land.
At one level, at least, the substantive contest in the proceedings is between Graham and the defendant as Graham endeavours to establish, through such entitlements as his parents may have, an interest in the Kings Langley land.
He has been active in the conduct of the proceedings from, and in anticipation of, their commencement. He makes no claim for relief in his personal capacity but, as has been recorded, he represents his father as tutor and his mother's deceased estate by virtue of orders made in the course of case management of the proceedings.
THE FAMILY, SAVAGE
The first plaintiff was born on 11 December 1929, and is now aged 84 years. His wife, originally the second plaintiff, was born on 12 December 1931. She died at the age of 80 years.
Mr and Mrs Savage senior, nominally the plaintiffs, were married, in England, in or about 1949.
There were four children of their marriage: one daughter and three sons. All were born in England. All are now mature adults.
Their daughter, the defendant (Denise, now known as Denise Rogers) was born on 10 May 1951. She is the eldest of the children.
The three sons of Mr and Mrs Savage senior are John (born 13 February 1956), Graham (born on 14 July 1958) and Shaun (born on 10 February 1971).
John appears to have taken no part in the proceedings at all. Shaun swore an affidavit read on the plaintiffs' side of the record, but he was not cross examined, and the defendant gave evidence of a general reluctance on his part to become involved in the litigation. The defendant's active opponent appears to be Graham alone.
The defendant was the first of the family to migrate from England. She married Peter Gillott (now deceased) on 11 December 1971. The newly married couple migrated to Australia in September 1972.
Part of the defendant's motivation in moving to Australia was to move away from her parents and, as she perceives her youth, their alcohol-driven domestic disputes. When she and Peter settled in Australia she soon discovered that he too, like her father, had a predisposition to alcohol that had a corrosive effect on their relationship.
The defendant was followed to Australia by her parents, Graham (then a teenager) and Shaun (a youngster) in November 1974. John alone stayed, and still lives, in England.
The circumstances in which the defendant was followed to Australia by her family is the subject of disputation that may bear upon the claims for relief made in the proceedings.
THE SUBJECT LAND
The defendant is the registered proprietor of the subject land, a residential property in Sutherland Avenue, Kings Langley, being Lot 967 in Deposited Plan 246999, and being the land formerly contained in Certificate of Title Volume 12387 Folio 23 and now contained in Folio Identifier 967/246999.
The defendant came by her present title to the land via the following course:
(a) The land (then vacant) was purchased by her then-husband, Peter Gillott, and herself as joint tenants in 1974. The memorandum of transfer (registered dealing number N978259), dated 1 August 1974, records the purchase price as having been $14,800. It was registered on 28 August 1974.
(b) The land was purchased with the assistance of a $13,800 loan from Portuland (Mortgages) Pty Limited, secured by registered mortgage number 978260 over the land. That mortgage was discharged on or about 23 December 1981 by a memorandum of discharge registered, as dealing number S890416, on 5 February 1982.
(c) In early 1977 the defendant and Peter Gillott granted a mortgage over the land to the Bank of New South Wales. It was dated 18 January 1977 and registered, as dealing number Q70945, on 15 February 1977. It was discharged on or about 4 September 1981 by a memorandum of discharge registered, as dealing number S890417, on 5 February 1982.
(d) The defendant testifies, and I accept, that the Bank of New South Wales mortgage was granted as security for a loan taken out to fund a trip by the family (the defendant, Peter Gillott, the defendant's parents and her two Australian resident brothers) to England to visit her paternal grandfather shortly after her paternal grandmother's death. Her passport records that she departed Australia on 10 December 1976 and returned on 11 January 1977.
(e) In late 1981 or early 1982 the defendant and Peter Gillott granted a mortgage over the land to Australia & New Zealand Banking Group Limited. It was dated 24 December 1981 and, as dealing number S890418, registered on 5 February 1982.
(f) The ANZ mortgage is expressed to be security for a loan made by the bank to the defendant and Mr Rogers (her present husband), both then of 109 Whitby Road, Kings Langley.
(g) Peter Gillett joined the defendant in granting the ANZ mortgage because, by that time, the marriage between the defendant and himself had been dissolved, but he formally remained on the title to the land. The marriage was dissolved by an order of the Family Court of Australia which, made on 9 August 1978, became absolute on 10 September 1978.
(h) By memorandum of transfer dated 12 February 2004 and registered as dealing number AA494493, Peter Gillott transferred his interest in the land to the defendant pursuant to a family law property settlement.
(i) That settlement was effected by a deed made between the defendant and Peter Gillott on that date (12 February 2004) which recited, inter alia, that the land had been purchased by the two of them; at the time of their divorce they had agreed that it was to be the sole property of the defendant and that Peter would transfer his right, title and interest in the land to her; that no property orders had been applied for to, or made by, the Family Court; and that the deed gave effect to the agreement made by the parties at the time of their divorce.
The contextual background to this history includes the following facts:
(a) The defendant separated from Peter Gillott in about September 1977, at which time she moved out of the house on the subject land (then occupied by her parents, two brothers and Peter Gillett) and commenced living with Mr Rogers in a flat at Castle Hill.
(b) After an intermediate move, the defendant and Mr Rogers purchased a house at 109 Whitby Road, Kings Langley, which was transferred to them by a memorandum of transfer dated 21 March 1979. The land was purchased with the benefit of a loan from St George Building Society Limited, secured by a mortgage over it.
(c) The defendant and Mr Rogers retained ownership of that house until, on or about 23 September 1981, they sold it and discharged the St George Building Society mortgage.
(d) The defendant and Mr Rogers were married on 13 October 1979.
(e) From the proceeds of sale of the Whitby Road property the defendant and Mr Rogers purchased vacant land at 379 Terrace Road, North Richmond with the intention of building a house there. The memorandum of transfer in their favour is dated 30 April 1982. It was registered on 24 May 1982. It records their address as Sutherland Avenue, Kings Langley, the land the subject of the current proceedings.
(f) The ANZ mortgage over the subject land was granted in respect of a loan to the defendant and Mr Rogers to provide them with funds to build on the North Richmond land and, incidentally, to repay the mortgages earlier granted over the subject land in favour of, first, Portuland (Mortgages) Pty Limited and, secondly, the Bank of New South Wales.
(g) The defendant testifies, and I accept, that she and Mr Rogers have repaid the ANZ loan.
Caveat number AF813035 was lodged against the title of the subject land (pursuant to s 74F of the Real Property Act 1900 NSW) in late 2010. The first plaintiff is named as the caveator, but the statutory declaration made in support of it was made (on 12 October 2010) by Graham. His mother was not a caveator. She was, by that time, living in a nursing home and, I infer, beyond the world of understanding.
The caveat claims "[an] equitable interest [in the land] arising from contributions to the purchase price of the property and the construction of the house thereon."
That interest is said, by the caveat, to have arisen from the following facts:
"The Caveator [the first plaintiff] paid out the balance of the mortgage taken out by the registered proprietor [the defendant]. The Caveator also paid for the building of the house on the subject land."
These proceedings were commenced in consequence of service, by the defendant, of a lapsing notice pursuant to the Real Property Act, s 74J. On an application made by the plaintiffs at the time of filing of the summons, a duty judge made an order (pursuant to s 74K of the Act) that the operation of the caveat be extended until further order.
No undertaking as to damages has ever been sought, or given, as the price of the order for extension of the caveat.
Shortly after the summons was filed the parties agreed upon a timetable for the filing of pleadings. Directions were given by the Court, for that purpose, on 15 February 2011.
The pleadings filed pursuant to those directions remain current, though they must be read in light of the subsequent death of the second plaintiff. The statement of claim (to which the defendant filed a defence) was verified by the first plaintiff personally on 2 March 2011 and filed the next day.
No cross claim has been filed by the defendant. Nevertheless any order for dismissal of the plaintiffs' claims for relief ordinarily would, and counsel agree that it should, carry with it (pursuant to s 90 of the Civil Procedure Act 2005 NSW and UCPR r 36.1) a consequential order, made on the application of the defendant under s 74MA of the Real Property Act, for the caveat to be withdrawn.
THE NATURE OF THE PLAINTIFF'S CASE
The relief claimed in the statement of claim does not fit neatly with the claim made in the caveat. Having had the benefit of cross examination of Graham, I infer that that is but one manifestation of attempts by him to reconstruct events in the years following 2007 based, in part, on his observations of the Savage family as a teenager and in after years, and, in part, on an understanding of events derived from conversations he had had with his father over their years of working together. Other manifestations of the process of reconstruction, acknowledged by Graham as having been engaged in by the preparation of a "dateline" in collaboration with his wife, are found in discrepancies between the statement of claim and affidavits affirmed by the first plaintiff on 18 January 2011, 30 June 2011 and 29 November 2011. Graham worked with his father in reviewing, if not in preparation of, each of those affidavits.
In the statement of claim the plaintiffs' primary claim is, in effect, a claim for a declaration that the defendant holds the Kings Langley land on trust for herself, the first plaintiff and the estate of Mrs Savage senior as tenants in common in equal, one-third shares. Alternative claims for relief include, in effect: (a) a claim to a beneficial interest in the land proportionate to the respective contributions allegedly made by the defendant's parents (principally the first plaintiff) to her acquisition and development of the land; and (b) a claim to equitable compensation, secured by a charge over the land.
These claims are grounded upon contentions which invoke principles of estoppel. Counsel for the plaintiffs relied, inter alia, on Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (1987) 164 CLR 137, Giumelli v Giumelli (1999) 196 CLR 101 and Delaforce v Simpson-Cook (2010) 78 NSWLR 483.
The plaintiffs' estoppel case includes a central allegation in the statement of claim that the defendant promised them that, in consideration of their (a) constructing and maintaining a house on her land at their cost; and (b) paying all miscellaneous expenses for "utilities" and council rates on the land, the plaintiffs "would each receive a one-third interest in the land at some time in the future" and "could reside on the premises rent-free for the rest of their lives."
Despite the terms in which this allegation is expressed, the plaintiffs' counsel expressly disclaimed any reliance on a cause of action in contract.
That the plaintiffs' claims are grounded in estoppel is confirmed by their pleaded allegation of reliance. They allege that, in reliance on the defendant's promise, and to her knowledge, the plaintiffs (a) refrained from building or purchasing their own house, and instead (b) purchased all the materials and constructed the house on the subject land; (c) paid all "utilities", council rates and miscellaneous expenses associated with the land; and (d) discharged various debts owed by the defendant secured over the land.
THE FACTUAL MATRIX
The Alleged Promise
A principal difference between the respective cases of the plaintiffs and the defendant relates to the timing of the defendant's disclosure to her parents that she and Peter Gillott had purchased the subject land and the reason for her parents' initial decision to travel to Australia. In the affidavits of the first plaintiff (who, by reason of dementia, was not available for cross examination at the final hearing) there is an emphatic insistence that the defendant enticed her parents to migrate to Australia by a promise expressed in the following terms:
"Dad, if you build a house on the land, you and mum can each have a one-third interest in the land and live in it rent free for the rest of your life as long as you pay all expenses associated with the land and maintain it."
I find, as the defendant has testified, that her family came to Australia, initially, simply to visit the defendant, not to build her a house or to live with her. Part of the reason she moved to Australia was to live separately from her parents. I am not prepared to find that the defendant made the promise attributed to her. I accept her denial that she did so.
It was shortly after their arrival in Australia, ostensibly on a visit, that the defendant first disclosed to her parents that she and Peter Gillott had purchased the subject land.
At about the same time the defendant and Peter were advancing their plans for construction of a house on the land. On or about 19 December 1974 (a few weeks after the defendant's family arrived in Australia) they collected drawings which they had commissioned from Grace Bros Design Service. On 10 January 1975 Peter lodged an application with Blacktown City Council for approval to build the house. On 22 January 1975 Council granted the application.
As the defendant relates her evidence, which I accept, her father volunteered to stay in Australia (initially on a working holiday) to help her and Peter to build the house on an owner-builder basis. As confirmed by the building application form lodged with Council, it was an owner/builder application, with an estimated building cost of $22,000.
The house was built over the period between February 1975 and November 1976 or thereabouts. It was occupied by the defendant, Peter Gillott, the defendant's parents and her two younger brothers in or about November 1976. It was the subject of a final inspection by Council in July 1977 shortly after which, in early August 1977, Council issued an occupation certificate.
Money Matters
With inconsistencies as to dates, and timing, the case for the plaintiffs includes assertions to the effect that:
(a) when they came to Australia on their "working holiday" in November 1974, the first plaintiff and his wife had accumulated cash savings of $26,000 (from which, the Court is invited to infer they funded the purchase of materials for construction of the house on the subject land).
(b) between 1974 and 1975, the first plaintiff and his wife paid $7,000 to the ANZ Bank to discharge a loan in favour of the defendant, said to be the loan which funded the purchase of the land by the defendant and Peter Gillett.
(c) in early February 2004 the first plaintiff paid to Peter Gillett the sum of $8,000 in consideration of him transferring his interest in the land to the defendant.
An Alleged Payment of $8,000
It is possible that at some time, probably in or about 1999 when his wife first exhibited signs of dementia, that the first plaintiff paid money to Peter Gillett for the purpose of dissuading him from trying to sell the house. The defendant deposes to having had a conversation with her father, at about that time, during the course of which he asserted that he had made such a payment and she told him that he was stupid for having done so because Peter Gillett had no entitlement to such a payment. However, there is no other corroboration of the payment allegedly made to Peter Gillott.
If any payment was in fact made, it was not at the request, or for the benefit or on the account, of the defendant and, as confirmed by Peter Gillott's execution of a deed in favour of the defendant, he and the defendant had agreed at the time of their divorce that he would transfer his interest in the land to her by way of a property settlement. I am not prepared, in light of that deed and the unavailability of the first plaintiff for cross examination on his affidavits, to find that the first plaintiff made any payment to Peter Gillott material to the state of the defendant's title to the subject land.
The alleged payment of $8,000 to Peter Gillott was said to have been made by payments in cash over a period of six months. There is no suggestion that the first plaintiff received a receipt for the payments. There is no evidence of the source of payments allegedly made.
An Alleged Payment of $7,000
There is no corroboration of the first plaintiff's affidavit evidence of having paid $7,000 to the ANZ Bank to discharge the loan said to have been taken out from the bank by the defendant to purchase the subject land. That evidence appears to have been inspired, at least in part, by a recollection of Graham that, shortly before the defendant married Mr Rogers, he, in the company of the defendant and the deceased, saw a letter of demand from the ANZ Bank. There are objective reasons for declining, as I do decline, to make a finding that the first plaintiff paid $7,000, on the defendant's account, to discharge any mortgage granted by the defendant (and Peter Gillott) in aid of acquisition of the subject land.
First, the defendant and her then husband purchased the land with the benefit of a mortgage loan from Portuland (Mortgages) Pty Limited, not the ANZ Bank.
Secondly, it is possible that any payment made by the first plaintiff by reference to a mortgage over the subject land was a payment made in connection with the Savage family's return trip to England over Christmas 1976 (funded by a mortgage loan from the Bank of New South Wales) arising from the death of the first defendant's mother.
Thirdly, it was not until December 1981 or thereabouts that a mortgage loan was taken out from the ANZ Bank, at which time both the Portuland and the Bank of New South Wales mortgages were discharged.
Fourthly, the account of a payment of $7,000 to the bank given by the first plaintiff and Graham is denied by the defendant and her present husband (Mr Rogers), for whose benefit moneys were borrowed, on the security of the subject land, from the ANZ Bank.
Alleged Cash Savings of $26,000
There is no objective, independent corroborative evidence of the first plaintiff's assertion (in the second of his three affidavits) that, at the time of arrival in Australia, he and his wife had cash savings of $26,000.
The defendant adduced evidence from her uncle, Mr Derek Rosso (the first plaintiff's brother-in-law, the husband of his sister) to the effect that, on his own admission, at the time he travelled to Australia in November 1974 the first plaintiff was impecunious.
That evidence, incidentally, supports the first plaintiff's affidavit evidence that he knew of the purchase of the subject land by the defendant and Peter Gillott before he travelled to Australia in November 1974; but, in its account of conversations between the deponent and the first plaintiff (before and after November 1974), it is inconsistent with the plaintiff's case that the defendant's parents funded the building of the house on the subject land. It is consistent, rather, with the defendant's evidence that, apart from any recompense to which the first plaintiff may have been entitled for his work on the house, she funded its construction.
Mr Rosso was cross examined by videolink. His evidence might be criticised as that of a person who, having reflected on primary facts, has come to his own conclusion that the plaintiffs' case lacks a factual foundation. However, he gave his evidence honestly and reasonably. In the absence of any independent corroboration of the existence of cash savings of the order of $26,000, absent any cross-examination of the first plaintiff on his assertion that he had such savings, and in light of the defendant's evidence (which I accept) that she funded the acquisition of materials for the construction of the house, I accept the substance of Mr Ross's evidence. I am not prepared to find that the first plaintiff and his wife had cash savings of $26,000 available to them in November 1974 from which they were able to fund, and did fund, construction costs.
The lengthy duration of the building work involved in construction of the house is consistent with the work having been undertaken, by family (including the first plaintiff, with his experience as a bricklayer), part-time and between commitments in paid employment, on the basis of an owner/builder project. The work appears to have been undertaken, when it could be, and as limited financial resources allowed, over a lengthy period.
Countervailing Factors
What remains of the foundation stones upon which the plaintiffs' case ultimately rests is that: First, the first plaintiff did admittedly, personally, undertake a substantial amount of work in the construction of the house. Secondly, upon construction of the house, the first plaintiff and his wife (together, for a time, with other family members) commenced residence there. Thirdly, both the first plaintiff and his wife continued in occupation of the house until respectively compelled by declining health to move to a nursing home (the first plaintiff in 2012, his wife in or about 2008).
Fourthly, at various times, and over time, the first plaintiff asserted an ownership interest in the house based upon the work he had undertaken in its construction and statements attributed to the defendant. Fifthly, the defendant allowed her parents to remain in occupation of the house, without any payment of rent to her, notwithstanding disputes between her and her father about his claim that he and his wife were each entitled to a one-third share in the title to the land. Sixthly, on her own evidence, at times when she was endeavouring to persuade the first plaintiff to give up possession of the land so that it could be sold, she offered to pay him (but he declined to accept) $10,000, from the sale proceeds, as recompense for his personal exertion in the building of the house.
I leave to one side the affidavit evidence of the first plaintiff (disputed in part by the defendant) that he paid current expenses, such as rates, referable to the land. If and to the extent that he paid such expenses, his payments were on a current, not a capital account and they cannot be said to have contributed to the defendant's acquisition or development of the land.
The fact that the defendant's parents remained in occupation of the house on the subject land, from the time of its construction until their respective departures for a nursing home, is explicable by the fact (which, by an acceptance of the defendant's evidence, I find) that she had a strong filial respect for her parents, coloured by a childhood fear of the aggressive side of her father's personality. Having experienced disappointment with her first marriage, confronted by the prospect of having to live in a household she had left England to escape, and induced by the prospects of a happy second marriage (now realised), she chose not to press, beyond entreaties, her desire to obtain possession of the land for the purpose of sale. Her father's sense of entitlement was not grounded in facts, but upon a misplaced insistence on ascendency within the family. He may have persuaded himself that his daughter had made him a promise of title but, in fact, she had not done so.
It would be a mistake to conclude, and I do not find, that the relationship between the defendant and her parents was wholly negative. She appears to have remained connected with her mother whilst ever her mother retained the capacity for meaningful communication. Throughout even the years of family tension, she remained in contact with her father and, to his credit, he provided her and her current husband with financial assistance (which they say, and I accept, they repaid) following Mr Roger's experience of ill health.
All in all, there is no basis in the evidence for a finding that it would be unconscionable, now, for the defendant to insist upon enforcement of her legal entitlement to the whole of the subject land, unencumbered by any obligation in equity to her parents. She did not at any time make to her parents the promise they have pleaded against her. If, by reason of anything done or left undone by her, they ever had an expectation that they could, as of right, remain in occupation of the land that expectation could not reasonably have had any operative effect beyond their respective departures for a nursing home.
On any view of the evidence, the defendant allowed them to remain in occupation of the land, over the whole of their active lives, without any payment of rent to her. On my findings, they made no capital contribution to her acquisition or development of the land beyond the first plaintiff's labour on the house. Her offer to him of $10,000, as an inducement to give up possession of the property, was never intended to give rise to a contract and, even if it had been, it was an offer that never ripened into an agreement by acceptance. Neither the first plaintiff nor his wife appears to have acted to their detriment in reliance upon the offer.
CONCLUSION
In these circumstances, the plaintiffs' summons should be dismissed, an order should be made for withdrawal of the first plaintiff's caveat and an order for costs should be made in favour of the defendant on the basis of costs following the event.
The costs order sought by the defendant, appropriately in the circumstances in which Graham has been her active opponent, is an order that the defendant's costs be paid by Graham.
In reaching my conclusion that these are the orders appropriate to a disposition of the proceedings I note that (having heard and considered the whole of the evidence, but particularly the cross examination of Graham) I have formed the view that it is unnecessary, and it would perhaps be unhelpful, for me to elaborate interlocutory reasons for judgment given in support of a ruling that the three affidavits affirmed by the first plaintiff be admitted into evidence over the objection of the defendant.
The defendant adduced evidence to the effect that the first plaintiff lacked the mental capacity required to verify an affidavit (leading, so the defendant contended, to a conclusion that he lacked the competency to give evidence required by s 13 of the Evidence Act 1995 NSW) and, on the plaintiffs' side of the record, evidence was called to a contrary effect. The defendant also objected to admission of the affidavits into evidence in circumstances in which it was agreed, and correctly so, that the first plaintiff's present mental incapacity rendered him unavailable for cross examination. She also, as a penultimate line of defence, unsuccessfully applied for a blanket order under s 135 of the Evidence Act that the affidavits be excluded from evidence.
I adhere to, and to the extent necessary confirm, my ruling as to the admissibility of the affidavits.
That ruling, as events transpired, facilitated a determination of this family's festering dispute "on the merits". As it happens, the defendant's last line of defence (also her first and principal line of defence) was her best. I have accepted as correct the substance of her evidence and, having heard all the evidence, concluded that it would not be safe to rely upon the case advanced against her in, or by reference to, the affidavits of the first plaintiff.
I make the following orders:
(1) Subject to Order 2, ORDER that the proceedings be dismissed.
(2) ORDER that Caveat No. AF813035 be withdrawn forthwith.
(3) ORDER that Graham Savage pay the defendant's costs of the proceedings.
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Decision last updated: 13 February 2014
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