Sewell v Skarratt

[2005] NSWSC 626

CITATION:	Sewell v Skarratt & Anor [2005] NSWSC 626
HEARING DATE(S):	20 and 21 June 2005
JUDGMENT DATE :	21 June 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Judgment for Defendants on Statement of Claim.

CATCHWORDS:	PROPRIETARY ESTOPPEL - Whether representations that plaintiff would be transferred house in father's name proved - FAMILY PROVISION - whether plaintiff demonstrated father's will left him without adequate provision - no question of principle.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) - s.7 Real Property Act 1900 (NSW)
CASES CITED:	Assets Co Ltd v Mere Roihi [1905] AC 176 Bahr v Nicolay (No 2) (1988) 164 CLR 604
PARTIES:	Peter Thomas Sewell - Plaintiff Judith Ann Skarratt - First Defendant Leslie John Sewell by his tutor the Office of the Protective Commissioner of New South Wales - Second Defendant
FILE NUMBER(S):	SC 2435/03
COUNSEL:	M.S. Willmott SC - Plaintiff M.W. Young - First Defendant J.R. Wilson SC - Second Defendant
SOLICITORS:	Owen Hodge - Plaintiff Jemmeson & Fisher - First Defendant E.H. Tebbutt & Sons - Second Defendant

LOWER COURT JURISDICTION:

Ex tempore

Introduction

1 The Plaintiff, Mr Peter Sewell, and the Defendants, Mrs Judith Skarratt and Mr Leslie Sewell, are the children of the late Thomas Bamford Sewell, who died on 23 January 2001 leaving a will dated 21 March 2000. Probate of the will was granted to the First Defendant on 31 May 2002. For the sake of convenience and without intending any disrespect I will refer to the members of the family by their first names. 2 As at the date of the deceased's death he and Leslie were the registered proprietors as tenants in common in equal shares of a residential property in Sylvester Street, Roselands (“the Property”). Peter alleges that in 1982 he and the deceased entered into an agreement in the following terms: the deceased would advance to Peter the purchase price of the Property, $55,000, less a $200 deposit which Peter paid; the Property would be purchased in the deceased's name; Peter would live in the Property and would repay the loan at the rate of $130 per week, and would be responsible for maintaining the Property and paying rates and taxes and other outgoings; when the loan was repaid in full the deceased would convey title to Peter. 3 Peter says that he repaid the loan, initially at the rate of $130 per week and then, from the end of 1989 onwards, at the rate of $150 a week, or $600 a month. Peter says that in September 2001, some four months before the deceased died, the deceased told him that he should cease making repayments of the loan and that the house was now his. 4 Peter says that after his father died he learned that on 15 July 1986 his father had conveyed a half interest in the Property as tenant in common to Leslie and that in his will the deceased had left his own half share in the Property in trust to permit Leslie to reside there for the rest of his life and, after his death, to Peter and Judith equally. It should be explained that Leslie had suffered severe brain damage in a motor vehicle accident in July 1979. Since August 1985 his affairs have been under the control of the Protective Commissioner. 5 The deceased transferred a half share in the Property to Leslie as a condition of the Protective Commissioner agreeing to pay to the deceased out of Leslie's estate the sum of $40,000, to be applied to the cost of construction on the Property of accommodation for Leslie. I will return to this transaction in more detail shortly. 6 As I have said, Peter says that he did not learn of the state of the title to the Property or of the terms of his father's will until after his father's death in January 2002. On 17 April 2003 Peter commenced these proceedings, claiming a declaration that the whole of the Property is held in trust for him absolutely and an order for transfer of the title to him accordingly. Alternatively, he sought an order charging upon the Property all moneys which he had expended in repayment to the deceased and in improvements to and maintenance of the Property. In the alternative, he sought further provision out of the deceased's estate for his maintenance and advancement in life pursuant to s.7 of the Family Provision Act 1982 (NSW) ( “FPA”) . 7    At the trial Mr Willmott SC appeared for Peter, Mr Marcus Young for Judith, and Mr John Wilson SC for Leslie, instructed by the Protective Commissioner. At the commencement of his opening, Mr Willmott conceded that he would have great difficulty in defeating the interest of Leslie in the Property, since that interest was registered under the provisions of the Real Property Act 1900 (NSW), and by virtue of s.42 of the Act Leslie's title is indefeasible in the absence of fraud. No fraud on the part of Leslie or of the Protective Commissioner has been suggested. 8 That position had not changed at the close of evidence. There is no suggestion that either Leslie or the Commissioner had notice of an interest of Peter in the Property at the time that Leslie acquired his registered interest. It follows that Leslie's registered interest in the Property must prevail over whatever interest Peter may have in the Property: see, for example, Assets Co Ltd v Mere Roihi [1905] AC 176; Bahr v Nicolay (No 2) (1988) 164 CLR 604. 9 Peter's claim against Leslie must therefore be dismissed. Mr Willmott properly concedes that this result is inevitable. 10 Peter's case now is that the promises made to him by the deceased and Peter's detrimental reliance on those promises have given rise to a proprietary estoppel, so that the deceased's estate is estopped from denying the interest which Peter was to have in the Property, to the extent that it remains within the capacity of the estate to transfer that interest to Peter. In other words, the proprietary estoppel is said to attach to the remaining one-half share interest in the Property which the deceased owned at his death. 11 Alternatively, Mr Willmott says that the deceased created an expectation in Peter that he would have title to the whole of the Property and would be able to live there for the rest of his life. Peter has expended considerable money and effort in the acquisition and improvement of the Property since 1982, so Mr Willmott says, and he now does not have the financial means to acquire another suitable Property. Mr Willmott says that it is proper to have regard to those circumstances in determining whether the deceased's will has failed to make adequate provision for Peter's maintenance for the purposes of an application under the Family Provision Act . 12    Judith defends the claims against the estate on the following grounds: – first, there was no agreement between the deceased and Peter as alleged. Peter occupied the Property and paid money to the deceased weekly or monthly as a tenant, in consideration of rent and not by way of repayment of a loan for the purchase of the Property as Peter understood at all times; – second, if representations were made by the deceased to Peter as alleged, Peter has suffered no detriment in relying upon such representations so that no proprietary estoppel can arise; – third, if any proprietary estoppel could have arisen, nevertheless Peter has been guilty of laches in bringing his claim so late so that relief should be refused; – fourth, as to Peter's claim under the Family Provision Act , Judith says that, having regard to the provision which the deceased has in fact made for Peter in his will, to the benefits conferred on Peter during the deceased’s lifetime and to Peter's own means and circumstances, no further provision out of the estate can be justified. 13    I turn now to consider the factual issue whether the alleged agreement between Peter and the deceased has been proved.


Whether alleged agreement was made

14    Peter is the youngest of five children of the deceased. The deceased was a successful builder and Peter and his elder brothers worked for the deceased for almost eight years. Peter is a bricklayer by trade. 15    In 1982 Peter and his first wife, Cheryl, were living in rented accommodation in Liverpool. Peter says that one evening at dinner the deceased said that, as he had helped his other children with the purchase of their homes, it was time that he helped Peter to have his own home, too. He suggested that he and Peter should start looking around for other properties. 16    It is pertinent to note at this point that by this time Leslie, who, as I have noted, had been severely injured in 1979, had apparently finally been discharged from hospital and was being cared for by the deceased and his wife. 17    Peter's evidence is that shortly after this discussion the deceased found the property at Roselands and thought that it would be suitable. The purchase price was $55,000. The land then had an old house on it and the deceased suggested that in a few years the old house could be demolished and a new house built. Peter agreed, but said that he could not afford to buy the Property and that, in addition, he was experiencing matrimonial difficulties. 18    Peter says that, after a number of discussions with his father, some of them in the presence of his mother, an agreement was reached in the following terms. The deceased would advance Peter the whole of the purchase price of $55,000 and Peter would pay it back by instalments of $130 per week. Peter would be responsible for paying the rates and outgoings and for the maintenance of the Property. The title to the Property would be put in the name of the deceased because Peter and his wife were going through a difficult period in their marriage. When Peter had paid back the loan and had resolved his difficulties with his wife the house would be transferred into Peter's name. 19    Peter says that shortly afterwards the deceased took him to the office of his solicitor, Mr Owen Hodge, where a document recording this agreement was signed by both of them. Peter does not have a copy of the document. Mr Hodge died some time ago. Although his practice is still in existence and there are records showing that the firm at one time had two safe custody packets of documents held for the deceased, one of those packets was delivered to the deceased before his death and the other does not contain the alleged agreement. The firm's records do not show whether or not the packet delivered to the deceased contained the alleged agreement. 20    Many of the deceased's papers were destroyed after his death when Judith was clearing out his home. Judith did not see the alleged agreement, but she cannot discount the possibility that such a document was amongst those which were destroyed. Peter's mother died some time ago. 21    In the result, there is no one left alive who can corroborate Peter's evidence about the agreement which he says he made with the deceased or that there was any document signed by Peter and the deceased relating to the Property. 22    Peter was cross examined extensively about his recollection of the terms of the document which he says was executed in Mr Hodge's office. His first and only secure recollection of the terms was that they provided that he would pay the deceased $130 per week. When the other terms of the agreement as alleged in his Statement of Claim and in his affidavit were put to him he agreed that those terms were in the document but he could the not readily explain why he had not been able to recall those terms when first asked to give his recollection of the document. However, I must bear in mind that the document was said to be executed more than twenty years ago and that Peter says that he saw it only once. 23    A letter from a real estate agent dated 17 November 1982 confirms receipt of a deposit of $200 for the purchase of the Property. Curiously, the letter is addressed to "P. Sewell" but at the address of the deceased, not at Peter's address. There can be no doubt that the contract for the purchase of the Property and the transfer were in the name of the deceased as purchaser. The conveyance was effected by Mr Hodge as the deceased's solicitor on 25 February 1983, the deceased becoming the sole registered proprietor. 24    Peter and his family moved into the Property upon completion of the conveyance and Peter began paying the deceased $130 per week in cash. No receipts were ever issued by the deceased for these payments. 25    In early 1986 Peter and the deceased discussed building a new house on the Property. There was to be a two-storey house at the front and a self-contained granny flat at the back. Peter says in his affidavit evidence that the granny flat was to be built for two reasons: so that Peter and his family would not have to move from the Property while construction work was being carried out and “so that someone like my disabled brother, Leslie, would be able to live there afterwards if the circumstances required it” . 26    Peter was cross examined about when he discussed with the deceased that Leslie would live in the granny flat and be cared for by Peter. His evidence in this respect was vague, contradictory and unsatisfactory. He seemed unable to remember at times when Leslie had had his accident, that is, whether before or after the acquisition of the Property in 1982. At one point, contradicting evidence he had just given, he said that he did not discuss with his father Leslie's occupation of the flat until construction had been completed. That is obviously incorrect as, well prior to completion, Peter had urged the deceased to try to obtain money from Leslie's estate, being managed by the Protective Commissioner, as a contribution to the building cost. Finally Peter agreed that the discussion about Leslie's occupation of the flat occurred during construction: T 30 lines 3-48. 27    As will become clear in a moment by reference to notes in the Protective Commissioner's file, it must have been agreed between the deceased and Peter early in their discussions about the construction of the new residence on the Property that the flat at the rear would be for Leslie's occupation in due course. Indeed, it is open on the evidence to conclude that that agreement was made even before construction started. I do not think that Peter was being entirely frank in his affidavit evidence when he said that the flat was built "so that someone like my disabled brother, Leslie, could live there" . 28    In April 1986 Peter applied in his own name to the Council for the necessary building approvals. On 15 April 1986 he obtained in his own name an owner/builder's permit for the construction. However, he agreed in cross examination that the construction was a joint effort between himself, the deceased and Peter's brothers, all of whom were experienced in the building industry. He agreed that he had had experience in filling out Council documentation for building construction, that there had been discussion amongst himself, the deceased and his brothers about who should do what work in the joint effort of the construction, and that it was agreed that he would fill out the documentation required by the Council. 29    In his affidavit evidence Peter said that he had expended $23,000 of his own money on the construction of the new building and that his father had also contributed money. He said that it was agreed between himself and his father that his father's contribution would be added to his existing loan to Peter. Again, in his affidavit evidence Peter said that he was unaware that in July 1986 the deceased transferred title to the Property to the deceased and Leslie as tenants in common in equal shares. He said that the deceased did not mention this to him at the time and that he was unaware of the state of the title to the Property until after the deceased's death. A somewhat different picture emerges from Peter's cross examination. He gave this evidence:

“Q. Sir, do you say that the arrangement was that the amount of money your father contributed would then be added to your loan to be paid back. Is that right?
A. Yeah, but that's when it all come about when we were building it and I said - that's when I asked dad to see the Public Trustees because I went to the Court case in Melbourne. I know how much Les was awarded from the accident, and I said to him, 'Is there any way of getting some money from the Public Trustees to finish it?'
…
Q. About 5 minutes ago or a bit longer, you were talking about approaching the Public Trustee for money. Do you remember that?
A. Through my father, yes.

Q. Can you explain how the Public Trustee came to be approached?
A. Through my father.

Q. You had some discussion with your father about approaching the Public Trustee. Is that right?
A. Yes I did.

Q. What did you say to your father about that?
A. When we were building, I said, 'If Les was going to get - shouldn't he contribute to some money towards the house.

Q. You said what?
A. 'If he was to live in the flat, shouldn't he contribute some money?' And, 'Could you go and ask the Public Trustees?'

Q. So there had been some discussion before that conversation about Leslie living in the house. Is that right?
A. That's right.

Q. Was that a discussion that took place in 1986?
A. I can't remember.

Q. Can you remember what was said in the course of that discussion about Leslie living there?
A. That he was going to move into the back flat.

Q. When was it first discussed, the concept that Leslie was to pay some money and live on the Property?
A. That was when I was constructing - building the house.

Q. Who did you discuss this with, with your father?
A. My father. I asked him to approach the Public Trustees.

Q. Did you have any personal involvement in the approach to the Public Trustees?
A. No, I didn't. Dad handled all that.

Q. But you say that you were surprised to find that half of the Property was transferred to Leslie?
A. I didn't know about that.

Q. Weren't you expecting that since Leslie was putting some money into the Property, he might take some legal interest in the Property?
A. Not for half of the Property. For the 40,000, fair enough. But not for the transfer of the whole half of the Property.

Q. When you discussed with your father, the idea that your father would approach the Public Trustee for money, did you discuss with him the idea of Leslie taking some charge over the Property for--
A. No.

Q. … the money put in?
A. No.

Q. Did you have some expectation at that time that Leslie would then have some interest in the Property for the value of the--
A. Flat.

Q. The $40,000 or however much the Trustee would put in?
A. Only for the construction of the back part of the house.

Q. Did you have some discussion with your father about Leslie having an interest in the land?
A. No, only in the construction of the dwelling.

HIS HONOUR: Q. I'm just not understanding you. You said that you expected that Leslie would have some interest to reflect the fact that $40,000 of his money had been put towards construction?
A. Yes.

Q. Did you have that expectation as a result of talking to your father about that?
A. That's right.

Q. What did he say that gave you that understanding?
A. Just that the back half - I didn't know anything about transferring half the Property.

Q. What did your father say about Leslie having some sort of interest to reflect the fact that $40,000 of his money had gone into the construction?
A. I asked for the $40,000 from the Public Trustees through me father to construct or finish of the back of the dwelling.

Q. Then you said he had some expectation that Leslie would have some sort of legal interest to reflect the fact that $40,000 of his money had gone in. Is that right?
A. Yes.

Q. Did you leave it to your father to arrange with the Public Trustee what that legal interest would be?

A. Dad had more contact with the Public Trustees than I did because dad was his legal guardian, I think.

Q. So did you leave it to your father to work out on what terms the Public Trustees would make the $40,000 available?
A. Yes, but I didn't know until later on about the other.

Q. You didn't know exactly how your father had done that?
A. No.

Q. But you did expect there would be some sort of legal protection for Leslie?
A. Yes.

Q. And his money being in the land?
A. Yes.

YOUNG: Q. So from the time you had that understanding, that Leslie was to have some interest in the land, was it the case that you no longer expected the entirety of the Property to be transferred to you?
A. Yes.

Q. You expected there would be some interest that would be transferred to Leslie and the rest of the Property would be transferred to you. Is that right?
A. That's right.”
30    The Protective Commissioner's file shows that at the time of the transaction Leslie's estate comprised $80,000 being administered by the Public Trustee in Victoria and $160,000 administered by the Master of the Victorian Supreme Court. The Protective Commissioner paid $40,000 to the deceased on 16 December 1986, the deceased having procured registration of a transfer of a half interest in the Property as tenant in common to Leslie on 15 July 1986. 31    It emerged also from Peter's cross examination that the construction of the building had cost $86,000, of which he said $23,000 had been contributed by himself, about $20,000 from the deceased, and $40,000 from Leslie's protected estate; he did not explain who contributed the remaining $3,000. 32    It had never been suggested, in Peter's Statement of Claim or in his affidavit evidence, that $40,000 had been contributed to the cost of the construction by Leslie. Indeed, the case which Peter had pleaded and verified and which he had presented in his affidavit evidence was that the only contributions to the cost of acquisition and construction on the Property had come from himself and from loans to him by the deceased, so that, once those loans had been repaid in full, as Peter alleged had occurred, then Peter was entitled to the transfer of the whole of the beneficial interest in the Property to himself. 33    As is clear from Peter's evidence in cross examination, which I have set out above, Peter's case, as pleaded and verified by him, is not in accordance with the facts as Peter knew them to be. 34    A file note dated 4 March 1986 in the Protective Commissioner's file makes clear what happened.

“I was recently approached by Leslie’s father who came to see me with a proposition to provide a home for Leslie. The proposal is that the father owns a dwelling at 32 Sylvester Ave., Roselands. Erected on the land is a small cottage. The father said that he proposes to demolish the cottage and replace it with a two-storey home. The home will be constructed in such a way as to consist of two self-contained flats. It is the father’s proposal that Leslie live in one of these flats and that one of the other sons, Peter and his wife, live in the remaining flat. The father proposes to make a gift of one-half interest in the land to Leslie on the basis, however, that Leslie will contribute $40,000 to the construction costs.

The father has given me a copy of the plans which he proposes to submit to Council for approval. He does not anticipate any difficulties. He has also given me a copy of the relevant Certificate of Title which shows that the land in question has dimensions of 39’9” x 164’11” and with an area of 24 perches. The land is adjacent to the Roselands Shopping Centre and the Roselands Bowling Club of which Leslie is a member.

The father is a builder and will be able to erect the house for considerably less than the usual cost. He proposes to draw down on Leslie’s $40,000 contribution from time to time to meet the cost of materials and sub-contractors.
…
Leslie and his father called to see me on 21.2.86. I had asked the father to bring Leslie to see me so I could confirm that he was happy with the proposal. He certainly expressed himself to be in agreement. I questioned him as to whether he could housekeep and cook for himself and he said that when he cooked for himself there were no complaints. His brother and sister-in-law will keep an eye on him. The father explained to me that he and his wife were now getting on in years and they thought it prudent that Leslie should start living independently. The father told me that he will instruct his solicitor to transfer a half interest in the land to Leslie as tenant-in-common when the contribution of $40,000 is approved by this Office and also the authorities in Vic.
…
I spoke with the father on 10/3 & he confirmed that Leslie’s parts of the new house is that part outlined in red on the plan. A kitchen will be installed where the plan shows ‘BAR’.”
35    It appears from this file note that the deceased was firmly in control of the building project and regarded the land as his own, to dispose of to Leslie as he saw fit. The deceased had worked out what was to be done and how Leslie was to be provided for and looked after by Peter. He had done so by February 1986, well before building approval was sought from the Council in April 1986. 36    I have no doubt from this evidence, and from the evidence of a relative, Mr Allen, which I accept, that the deceased regarded himself as having acquired the Property and as having undertaken the construction of the new building with the object of providing secure accommodation and care for Leslie in the long term, while at the same time providing accommodation for Peter and his family. 37    As matters turned out, Leslie continued to live with his parents. After his mother died, the deceased himself continued to look after Leslie, and ultimately Judith undertook that responsibility. Peter and his family continued to live in the Property. 38    At some time – the date is unclear – Peter divorced his first wife, Cheryl, and married his present wife, Cherie, who commenced living at the Property in April 1989. Peter had been paying $130 per week to the deceased since February 1983. If Peter's evidence is accepted, the payments were in reduction of a debt owing to the deceased of $75,000, being the original purchase price of the Property of $55,000, together with the sum of about $20,000 contributed by the deceased to the construction of the new building. The parties agree that by the end of 1989, if Peter's evidence is accepted, he had repaid $40,600 of this debt. 39    Peter says that, from the end of 1989 or the beginning of 1990, he paid the deceased $150 per week instead of $130. He gives no explanation as to why this increase occurred. 40    Again, the parties agree that, if Peter's evidence is accepted, at this rate of repayment, Peter had discharged the whole of the debt of $75,000 by the end of 1995. Yet Peter continued paying the deceased $150 per week for a further six years. He says that in September 2001, shortly before the deceased's death, the deceased said to him that he did not have to pay any more money for the Property, that he had paid enough, and that the house was his. 41    Peter did not ask his father at any time after 1995 if he could cease making weekly payments said to be in reduction of the deceased's loan to him. He said that he did not even ask how much was still owing. He never asked that the deceased transfer the Property to him because he had discharged the loan in full. 42    Peter was asked why he had done none of these things while his father was alive. He could give no satisfactory explanation. He said:

"Q. You never even bothered to find out from your father at any stage, how much money was said to be owing to him?
A. I trusted him.

Q. But you never even enquired, well I've been paying off this amount per month, how much is the balance of the loan for me to pay?
A. I didn't care.

Q. Why didn't you care?
A. Because.”
43    Peter's explanation for failing to protect his alleged interest in the Property and for paying $600 a month for six years for no apparent reason came down to the statement: "He was my father" , but there was no suggestion in Peter's evidence, or in anyone else's evidence, that the deceased had any need of money at this or at any other time, or that the relationship between Peter and the deceased was such that Peter would have felt it difficult to ask his father to honour his agreement about the Property. On the contrary, the evidence of Peter and his wife suggests that Peter was always on good terms with his father. 44    Mr Young says that the real reason for Peter's continuing to pay $150 per week to the deceased for many years after the alleged loan was discharged was that the payments were, in truth, rent. Peter denied that suggestion. 45    Notwithstanding Mr Willmott's full and careful submissions, I am unable to find that Peter has proved that there was an agreement between himself and the deceased concerning ownership of the Property in the terms which Peter alleges. My reasons are as follows. 46    First, I regard it as improbable in the extreme that Peter, for no explained reason, would continue paying the deceased $150 per week after the alleged loan was discharged and he was entitled to a transfer of the house to himself. Peter’s evidence demonstrates that at all times he knew how much the alleged loan from his father amounted to, namely $55,000 for the purchase price of the Property and $20,000 for the cost of construction. There was never any suggestion in the evidence that the loan would carry interest, so that there could be no complicated calculations about the balance of the loan owing at any time. All that was required, in order to calculate what was outstanding, was a very simple addition and subtraction based upon known and straightforward figures. 47    I do not accept the suggestion that Peter is a simple man, unconcerned with money, and that he continued paying the deceased because it never occurred to him to stop. The evidence of Judith, which I accept, is that, on a number of occasions, Peter complained that it was "unfair" that he had to continue paying “rent” to the deceased. Further, Peter has demonstrated, throughout his evidence, that he has an appropriate sense of the value of money. 48    I did not find convincing Peter's inability to explain his continuing payments to the deceased, merely by reference to the fact that the deceased was his father. I did not find convincing the manner in which that evidence was given. 49    Second, I did not think that Peter was being frank in the way his case was pleaded in the statement of claim or presented in his affidavits. As I have noted, there was no reference in the pleading, or in the affidavit evidence, to the fact that, to Peter's knowledge, $40,000 had come from Leslie's estate towards the cost of construction of the new building on the Property, and that Peter expected that Leslie would have a legal interest in the Property. 50    Third, as I have noted, I did not think that Peter was being frank in his affidavit evidence about the purpose of the granny flat, as discussed with the deceased from the very beginning of the proposal for a new construction. 51    Fourth, to accept Peter's evidence would require a finding that the deceased had deliberately and deceitfully broken a documented agreement with his own son about the proprietorship of the Property by secretly transferring a half interest to Leslie and by disposing of the Property by his will in the manner in which he has done. No motive has been suggested for the deceased to have acted in this way. As I have said, the evidence of Peter and Cherie suggests that Peter and the deceased were on good terms. 52    The evidence of Peter as to what the deceased agreed in 1982 as to the ownership of the Property is uncorroborated by any evidence, save his own. Cherie's evidence as to what the deceased said in 2001 is not likely to be entirely impartial. The deceased is, of course, unable to defend himself against the allegation of deliberate wrongdoing. In these circumstances, the Court must scrutinise very carefully the uncorroborated evidence of Peter as to the 1982 agreement and must feel a comfortable degree of satisfaction in accepting that evidence. 53    Fifth, it is clear, from all of the evidence, including Peter's, that the construction of the new building on the Property was a collaborative family effort. The deceased contributed $20,000, Peter's brothers contributed their unremunerated labour, and Peter contributed $23,000, although not all of that sum went to construction costs. 54    Peter acknowledges that it was agreed in discussion that he should fill out the necessary papers for Council permission. The fact that his name appears on the building construction application and on the owner builder's licence is not in itself especially weighty, in the light of that consideration, nor is the fact that the deposit of $200 was paid by Peter. This sum, and the contribution of $23,000, is explicable in light of the fact that Peter himself would be a principal beneficiary of that expenditure while he was occupying the Property. 55    Sixth, the evidence in its entirety is consistent with an agreement between Peter and the deceased that the deceased would purchase the Property and permit Peter and his family to live in it at a very reduced rent. In this way the deceased would provide for Peter's accommodation and, also, by contributing to the construction of the new building, including the granny flat, for Leslie's care accommodation in due course, when his parents were no longer able to look after him. 56    Seventh, it is significant that Peter could not, without prompting, recall anything about the terms of the document which he signed in Mr Hodge's office, except that it required him to pay the deceased $130 per week. This is consistent with the document – if there were a document – being a licence or a lease. 57    Eighth, I accept the evidence of Judith and other witnesses that Peter frequently referred to the payments to the deceased of $130 or $150 per week as "rent". While this term was, no doubt, used colloquially on occasions, I am by no means satisfied that Peter did not, at the relevant times, understand the difference in meaning between “rent” and “loan repayment”. 58    All of these considerations lead me to the conclusion that I cannot accept Peter's evidence as to the alleged agreement with his father made in 1982. I conclude that Peter has not proved that the deceased made any representations in 1982, or later, contractually or otherwise, that Peter would, at any time become entitled to the whole of the beneficial interest in the Property. 59    Peter and his family have lived in the Property for twenty three years. Peter has expended a great deal of effort and money in maintaining the Property in very good order and in paying all of the outgoings. It is understandable that Peter and his family have come to regard the Property as their home. However, this in itself is not sufficient in law to create a reasonable expectation that the Property should, or would, become Peter's. 60    Further, it must be borne in mind that Peter's contribution to the capital cost of the Property has been relatively minor, and that he has been living there for many years at what is clearly a rent which is very much below market rent. 61    Accordingly, I hold that Peter's claim, founded on proprietary estoppel fails on the facts. It is, therefore, unnecessary to consider the defences of lack of detriment and laches. I note also that the alternative relief for a charge over the Property was not pressed in Mr Willmott's final submissions.


Claim under Family Provision Act

62 I turn now to consider Peter's claim out of the deceased's estate for further provision under s.7 FPA . 63    Peter has already received a distribution from the estate of $120,000. Leaving aside, for the moment, provision for the costs of these proceedings, the cash still remaining to be distributed from the estate will provide him with another $44,000, in round figures. The parties agree that the value of the Property is between $580,000 and $630,000, and that it is appropriate to take $600,000 as its value for present purposes. Peter's one quarter share of the Property, which he obtains under the deceased's will, is, therefore, $150,000. 64    In all, Peter receives $314,000 under the will. It is to be noted that this sum is slightly more than half of the agreed value of the Property, and that Peter's primary case was that he should obtain the deceased's half share of the Property by reason of the proprietary estoppel. 65    Peter is fifty three years of age and is still working. His remuneration last financial year was $43,000 per annum and his projected income this year is almost $50,000. His wife, Cherie, is not well and is now unable to work. Cherie's projected income for this year is expected to be $18,000. Peter suffers from hypertension, heart problems and high blood pressure, but his condition does not disable him from working. 66    Peter has superannuation benefits of $44,000 and Cherie's superannuation benefits are $34,000. Peter's total assets, including superannuation, are $116,000. His liabilities do not exceed $3,500. Cherie's assets, including superannuation, are $136,000. Peter and Cherie's living expenses are about $750 per week. 67    Leslie has recently been diagnosed with terminal cancer. His life expectancy is from six to twelve months. He will require increasing medical care and attention as his condition deteriorates. This is a factor which must be borne in mind in considering whether any further provision for Peter out of the estate is appropriate. 68    In arriving at my conclusion, I have regard to the following considerations. 69    First, for the reasons I have given, I am not satisfied that the deceased induced in Peter the expectation that Peter would be provided with the whole of the Property as his accommodation for the rest of his life. 70    Second, Peter has lived in the Property for more than twenty years, paying a consideration which the evidence in the Protective Commissioner's file suggests was at all times well below the market rent. 71    Third, Peter is to receive from the estate more than half of the value of the Property, that is, $314,000. 72    Fourth, Peter is comparatively able bodied, and he and his wife together have assets valued at about $250,000, with insignificant liabilities. 73    Fifth, Peter has not demonstrated any special need for accommodation for the future. There is, in general, no expectation in the law that a testator must provide accommodation from his estate for an able bodied adult child. 74    Sixth, a diminution of any substantial amount of the estate available to take care of Leslie would be quite inappropriate in Leslie's circumstances. 75    Taking into account these circumstances, I am unable to conclude that the deceased's will has left Peter without adequate provision for his maintenance. The application under the Family Provision Act , accordingly, fails. 76    There will be judgment for the Defendants on the Plaintiff's Statement of Claim.
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