Sommerville v Sommerville

[2015] NSWSC 1247

Supreme Court

New South Wales

Medium Neutral Citation:	Sommerville v Sommerville [2015] NSWSC 1247
Hearing dates:	21 August 2015
Date of orders:	31 August 2015
Decision date:	31 August 2015
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Summons dismissed with costs.
Catchwords:	EQUITY – equitable remedies – plaintiff claims his father (the defendant) represented that he would devise to the plaintiff a property if the plaintiff helped construct a house on the property – the defendant/father disputed that he made to his son the representations alleged – whether the representations were made – whether the plaintiff relied on the alleged representations – whether the plaintiff suffered any detriment in reliance on the promises – HELD – representations were not made and were not relied upon.
Legislation Cited:	Real Property Act 1900, s 74J
Cases Cited:	Austotel Pty Ltd v Franklins Self Serve- Pty Limited (1989) 16 NSWLR 582 ER Ives Investment Limited v High [1967] 2 QB 379 Dillwyn v Llewelyn (1862) 45 ER 1285 Malouf v Malouf (2006) 65 NSWLR 449 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 Ramsden v Dyson & Thornton (1866) LR 1HL 129 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Category:	Principal judgment
Parties:	Plaintiff: Rodney Keith Sommerville Defendant: Rupert George Sommerville
Representation:	Counsel: Plaintiff: in person Defendant: J. Turnbull   Solicitors: Defendant: Colin A. Simmons, Hosie & Partners
File Number(s):	2015/96833
Publication restriction:	No

Judgment

1. In this case a son sues a father. The son alleges that in his late school and early university years he helped construct his parents’ house in the Broadwater district on the north coast of New South Wales. He says he so assisted his parents in response to an expectation that they created in him that he would later receive the house after their deaths. The mother died in 1984 and the house passed to the father. The father, who is now 85, needs to sell the house. He denies he created any such expectation in his son.

2. The plaintiff, Rodney Keith Sommerville, is the son of the defendant, Rupert George Sommerville and the late Joyce Veronica Sommerville. All the parties and witnesses in these proceedings are from the one family. Without intending disrespect to any family member, for convenience the Court will use their first names in this judgment. The defendant Rupert is sometimes informally called “Rodney” by family members but he will be referred to as Rupert in these reasons.

3. Rodney was born in November 1963. Rupert and Joyce adopted him shortly thereafter. Rupert and Joyce purchased the property the subject of these proceedings as joint tenants in November 1980. The precise address and title particulars of the property are identified in the Summons and it will be described in these reasons merely as “the property”. When Rupert and Joyce purchased the property it was vacant land. In late 1980-early 1981 with Rodney’s help they set about building a double-storey house on the property. The principal building tasks on the property were completed by late 1982, when Rodney was in his final years of high school. The house was only finished in about 1986.

4. Rodney’s case principally concerns statements that both Rupert, and Joyce, are said to have made to him at various stages before during and after his participation in the building of the house. These various representations will be detailed below. The first set of statements were alleged to have been made in January, 1981, the summer of 1981-1982 and the summer of 1982-1983 to encourage Rodney to help them build the house and make it habitable for the family.

5. Joyce died in August 1984. The property passed by operation of law to Rupert. Rodney alleges that after Joyce’s death further conversations took place between himself and his father about what would happen to the house in the future after his father’s death.

6. In 1985 Rupert met Barbara Alma Rowan and in 1986 began living with her at the property. He married Barbara in May 1987. Rodney says that at the time of Rupert’s marriage to Barbara he had further conversations with his father in which Rupert made further statements about what would happen to the house after his death.

7. Until about twelve months ago Rupert and Barbara were living at the property. But Rupert has now become increasingly frail and suffers ill health. Rupert and Barbara have vacated the property to purchase and live in a single storey house at nearby Evans Head. Rupert wants to sell the property to help fund his move to the more liveable Evans Head premises.

8. Rodney’s Summons in these proceedings seeks relief: that his father Rupert holds the property on trust for him; alternatively that it is charged in Rodney’s favour “to such extent as the Court may order”; and further in the alternative, that Rupert is estopped from dealing with the property “contrary to the assumed state of affairs encouraged by the defendant that the property would upon the defendant’s death become the property of the plaintiff”.

9. Rupert contests Rodney’s claims. He denies encouraging Rodney to work on the property on the basis that Rodney would gain an interest in the property or would inherit the property on Rupert’s death. Even if the representations were made, Rupert also puts in issue that Rodney relied upon them.

10. Rodney presented his case in person. Mr J. Turnbull of counsel appeared for Rupert. Because of Rupert’s age and ill health he was unable to travel to Sydney for the hearing. So the Court heard the evidence and submissions in Ballina Court House on Friday, 21 August 2015.

11. What follows is a narrative of the uncontentious facts and of the Court’s findings on disputed matters. This narrative does not always set out the facts that have been rejected in favour of those that have been accepted

The Sommerville Family – from the 1960’s to the present

12. The small family of Rupert, Joyce and Rodney Sommerville lived on the waterfront at Gunderman near Wiseman’s Ferry on the Central Coast from the time of Rodney’s adoption in 1963 until about 1971. During this period Rupert worked on a substantial property in Gunderman, which provided accommodation for the family by the water. They left Gunderman in 1971 and as Rupert followed work the family lived in rental accommodation until about 1980. Joyce was particularly interested in living back by the water and often said to Rodney and Rupert “I would love to return to the waterfront”.

13. The Purchase of the property at Broadwater – November 1980

14. In 1980 Rodney received a compensation payment for injuries he had received at work. With those funds Rupert and Joyce decided to purchase a property near the water. They then found and purchased the property at Broadwater for $12,000. This was the first property that they owned.

15. Rodney says and I accept that he recalls that at the time his parents purchased the property at Broadwater Rupert said to him words to the effect, “We can’t afford to buy a block of land and have somebody else build the house, so I have got my own builder’s permit and you and me are going to [be] building it”. Rodney says that he said back to his father “OK” and thereafter he says that he remembers his father referring to the property as “ours” and would talk about the plans that “we” had for it.

16. But none of this is very remarkable. It is not uncommon within families for both parents and children to refer to the property in which they all live, owned by the parents, as “ours”.

17. Construction to Lock up Stage – January to July 1981

18. Rupert, Joyce and Rodney moved into the property in December 1980. Initially they lived in a caravan which was parked on the property, whilst they put the first structures on the vacant land. They started building a fibro tool shed with a shower for storage and some domestic purposes. Rodney assisted in this and helped in constructing temporary plumbing, digging trenches and laying pipes. He visited various suppliers of building materials, researched and sourced materials and put in orders for timber and purchased tools.

19. The family continued to live in the caravan for the first six months after building work started. By that stage the downstairs part of the house was sufficiently weatherproof and secure for the family to move from the caravan inside.

20. In January 1981 Rodney assisted his father to dig the foundations for the house by hand, despite the fact that a backhoe would probably have been more suitable for the job. This was done because of the tight family budget. He also formed up and laid the reinforcing for the concrete pours on the ground floor of the house.

21. Between February and May 1981 Rodney says, and I accept, that after his return to school and until the house reached lock-up stage, he spent every morning before school and every afternoon after school working on the property doing building work. I do not accept that this occurred every morning and afternoon but I do accept that it was frequent work and on average took place several days a week. Rodney says that during school time his work on the house averaged approximately 4 hours per day, except on Wednesdays when he worked for an additional 3 hours instead of doing sport at school. I do not accept that Rodney worked those hours as an average but I do accept that he sometimes did.

22. Again Rodney says that he worked between eight and ten hours each day of the weekend. I generally accept that he worked at least one day of the weekend, and sometimes both during this six month period. Overall Rodney says that he worked an average of about 40 hours per week at the property for this first six months. In my view it was less than this but on the other hand I accept it was very regular, almost daily during this time. Once the roof was on the house and the family was able to move in downstairs the pace could slacken a little.

23. The work remained heavy during this first six month period. Rodney worked essentially as a bricklayer’s labourer outside school hours after he had gone back to school. He mixed cement and bricked up the walls of the house, using concrete blocks which were cheaper than bricks. He would mix cement both before and after school and between himself and his father they would try to put one layer of blocks around the house per day. They substantially achieved this and I accept it took approximately two weeks to finish the ground floor walls. He and his father installed windows by cementing them in to place. After the ground floor brickwork was done Rodney and Rupert installed concrete reinforcing rods. The pair then completed the interior walls for the garage, laundry and bathroom, which were made from thinner concrete blocks. Finally they constructed joists for the floor and installed a temporary floor that could act as scaffolding so they could continue to build the first floor. Then they built a ramp access to the temporary flooring level to wheel up concrete blocks and cement in the next level. I accept that Rodney was involved in a wide range of construction work in this first six months.

24. But the family budget became stretched in May – June 1981. Rupert ran out of money. So he took out a bank loan to complete the purchase of roofing materials so that the house could be finished to the lock-up stage. The father and son sought the voluntary assistance of an uncle, Ken Sommerville, and a neighbour, Bernie Balzer, to help position the roof trusses. Rodney was then involved in holding the roof trusses in place so that Rupert could nail them into a fixed position. Rodney then nailed straps to the roof trusses. Once the roof tiles were delivered Rodney was involved in nailing them to the roof. He assisted his father to install fibro sheeting to fill in the ends of the roof, install roller doors downstairs for the garage and install the final flooring for the first floor and the doorways downstairs, which completed the downstairs section. This allowed the family to move into the ground floor of the house in July 1981.

25. Rodney says that it was during this building work that his father made the first of the statements on which he founds his case. Rodney says that Rupert said to him words to the effect, “This is it for us, we will never move” and that in reply Rodney said back to his father words to the effect, “It is going to be my place, Dad, and I am never going to be selling it either”. It can readily be accepted from the intense nature of the work they were doing in a location that they both regarded as idyllic that something like this was said between father and son at breaks in their work. And it can also be inferred that Rodney had a general hope that one day that he would inherit the property that he was then helping to build jointly with his father. But I do not draw from such talk between a boy in Year 11 at school and his father at the work site that the father was deliberately inducing him to continue working by making such statements and acquiescing in such replies from the son. Nor in my view did Rupert intend that Rodney would take what he was saying on such occasions as a promise that he would inherit the property. Rather the circumstances seemed to reflect a more natural and relaxed setting: a son volunteering to help a father and a father being with his son, because that is what they both wanted to do. I do not accept Rodney’s evidence, which was far too cynical for a teenager, that this work at the time “wasn’t due to the emotional attachment to my mother and father…[but]….was due to the fact I was going to get the property in the end”.

26. Rodney says that he worked virtually full time - seven days a week, eight to ten hours a day - during the month of January 1981, before returning to school in February 1981 and then in the next six months. I do not fully accept Rodney’s evidence about the intensity of the work during this period. But his father did not deny that the work was very busy. Moreover, it seems logical that in order to be able to move out of the caravan and into the downstairs portion of the house that a sustained family work commitment was required. And this is consistent with Rodney’s version: he contends it is difficult to account for so much work being done other than on the basis of an expectation of inheritance of the property intentionally created in him.

27. But two matters strongly point the other way here. The first is that Rupert’s continuing affection for Rodney was still quite evident in the Courtroom in 2015 during this present contest, some 34 years after these events and despite the family’s present divisions. I find it difficult to accept that Rupert was acting in the early 1980’s in relation to his son on the basis of some work-benefit calculus that he was intending to motivate the boy to work in exchange for a promise that he would inherit the property later.

28. And the other matter that tends to answer Rodney’s case, especially in this first six months, is that joint work on the house was at that time simply a pressing family necessity. If Rodney wanted to have a roof over his head with his parents and a place other than a caravan where he could complete his schooling, he had to pitch in with them immediately. The whole family was up against it at that time. Joint family effort to establish some permanent shelter was needed. In my view it is unrealistic for Rodney even to claim that he made a choice whether or not to work on the house because of statements made between him and his father. In my view without any statements being made the imperative to work on the house for family reasons was obvious to Rodney and his parents.

29. Interior finishing and cleaning up - July to December 1981

30. Once the family moved into the house in July 1981 the nature of the work changed. Because Rupert had run out of money to buy materials for the house the work slowed and only tended to occur thereafter from time to time when he could afford materials.

31. The pair constructed the drainage for the bathroom and rendered the walls and floor. The render was painted because the family did not have enough money for bathroom tiles. They installed a toilet, laundry tub and second hand shower and painted the interior walls downstairs.

32. During the second half of 1981, whilst they were living downstairs, Rodney and his father built the interior walls upstairs together with the ceiling, and attached gyprock to the walls but engaged plasterers to do the plastering work, as this trade expertise was beyond their capabilities. They trimmed the damp courses around the windows, did trimming for the doorbells and other fittings and undertook general cleaning up of the site.

33. By the Christmas holiday break 1981-1982 the family had no spare funds. So Rupert, who seemed always to have been industrious, found some part-time work at a nearby dairy called “Laceys”. Rodney helped his father wash down the dairy and help rebuild its fences. Rodney also helped his father on various farms including hay baling and fencing work.

34. I accept that Rodney was never paid for this work. All the money that was earned was used to purchase materials to be incorporated into the house.

35. Rodney says that both his mother and father promised him that “as the house would one day be mine all of the work that I completed on the property was for my benefit anyway”. Rodney also says that his father said to him, in what I infer from the nature of what was said must have been in the course of the works, words to the effect, “We are building this place for us. You, your mother and me. It’s all going to be yours anyway”. Rupert denies making these statements. And I accept they were not made in this way. There was such task in a general sense but in my view Rupert did not connect the work Rodney was doing his ultimate inheritance.

36. As with the previous statements between father and son earlier that year, Rodney undoubtedly had a general hope that one day that he might inherit the property that he was then helping to build. But for the reasons already given I do not draw from this talk the conclusion that Rupert was deliberately inducing Rodney to continue working by making such statements. Rather the circumstances seemed once more to reflect a more natural and relaxed setting: a son volunteering to help a father and a father being with his son, because that is what they both wanted and separately there being quite general talk about the son inheriting the property one day. But I do not accept that the father intended a necessary connection between the son building and the son inheriting. Nor at the time in my view did the son take the conversations this way. My impression of Rodney’s evidence is that he had made this connection much later and close to the hearing by a process of reconstruction.

37. Rodney then says of the statements made to him, “I would not have done the work if this had not been the case”. I do not accept this evidence. For the reasons already given Rodney had to continue with this work is a matter of family necessity. By the second half of 1981 the burden of the work was lighter and Rodney’s HSC year was getting closer. I do not think that Rodney would ever really seriously have contemplated not doing the work without the assurances of the house going to him in the long-term. He could see much more tangible short-term benefits from doing the work as well as just having the pleasure of helping out his father.

38. Rodney further says and I accept that statements such as these were re-affirmed to him on occasions over the years since. His father regularly said things to him such as, “This house is yours” and “This will all be yours one day”. And Rodney says, and I accept, that he always referred to the property as “home”, regardless of where he had been living. But these later statements were after the most intense work had been done in 1981, had no causative effect on inducing that work, and were not some confirmation of previous promises.

12. And I infer that these later statements did not have much effect on the nature of the work that Rodney did in the later years after 1981. This later work was considerably lighter in nature, and more of a quality that might be expected to be done by son in the household in exchange for board or as a contribution to being a member of the household. The later work did involve more than just domestic chores and cleaning up. But through his early 1981 work Rodney had proved he had the expertise to contribute in this way. And by then he was in the course of study for his engineering degree. It must have seemed quite natural to all concerned in the family that Rodney should put his greater skills to effect for the benefit of the whole family.

13. Other trimming and finishes – From Summer 1981 to Summer 1982

14. Rodney acknowledges that 1982, his higher school certificate year, was a year in which he could not assist his father very much. Most of the substantive building work had been completed by that time. But after his HSC was completed, in the Christmas holidays in 1982 he and his father built the upstairs verandah and steps for the house. To save money they went to the sawmill to source the timber, planed their own timber for that job and then transported it to the property.

15. I infer that Rodney studied quite hard that year. Upon completing his HSC he matriculated and was able to commence studying engineering at the University of Newcastle.

16. Completing odd jobs – 1983 to 1986

17. Rodney lived at the property from December 1980 until February 1983. After matriculating to university at the end of 1982 he moved away to Newcastle to attend university early the following year.

18. In 1983 Rodney was sick, had complications from appendicitis and was unable to assist much with construction work anyway. But he generally returned home every university holidays in the following years. He says and I accept that he assisted with the general work at the house when he was at home including landscaping, which was required from time to time until it was all finished in 1986. But in my view this was what was expected of Rodney as a member of the household and he contributed accordingly. I do not accept that this continuing work from time to time during the holidays was actuated on Rodney’s part by fulfilling some compact by which he would inherit the house.

19. After Joyce’s Death – Christmas 1984

20. Rodney’s mother Joyce died before the house was completed. After she died in August 1984 the joint tenancy was severed and the property was transferred to Rupert by operation of law.

21. In 1984 Rupert and Rodney built a fence for their neighbour Mr Reg Waters and were paid in kind with six doors which they then installed upstairs during the Christmas holidays of 1984, a few months after Joyce had died.

22. Rodney says that in Christmas 1984, at a time when the house must have been almost but not fully complete, he and his father Rupert travelled to Sydney and to Batemans Bay for the Christmas break. He says that he can recall having conversations with his father about the house on this journey and during this Christmas period just after Joyce’s death. It is unclear from the evidence whether the house had already been transferred to Rupert or not when these conversations are taking place. But there is no doubt that it was transferred about this time.

23. According to Rodney, conversations were to the following effect. He enquired about the house and Rupert said to him “I would have transferred the property to both our names but I don’t have the money to do that right now”. Rupert explained to his son that “my [Rupert’s] brother and sister think we should sell the house because we don’t have the money to finish it”. Rodney says that he recalls replying strongly to the effect, “We are not selling this place Dad! We have put too much work into it to sell it”.

24. I accept such conversations took place. But they do not prove very much. They are not clear evidence that Rupert had made prior representations to induce Rodney to work on the property. They are not obviously statements in the nature of inducements to have Rodney do more work on the property. Nor do I infer that they had that effect or were intended to have that effect. They are more expressions of justifiable satisfaction as to what father and son had been able to achieve together before Joyce died and expressions of the future relationship that father and son saw having together after Joyce’s death.

25. Rupert met Barbara Rowan in 1985. They commenced a relationship, began living together in 1986 and married in 1987. Rodney says, and I accept, that when Rupert met Barbara, he became concerned about becoming entitled to his father’s estate in the event that his father should die and Rodney’s name was not on the title deeds to the property.

26. I accept that this became a topic of conversation between father and son. From time to time after Rupert’s marriage to Barbara, father and son had conversations to the following effect. Rodney asked Rupert, “What will happen if you die? Will Barbara get the house? Will my stepbrothers receive it? I am worried that they will try and take the house from me”.

27. These were not unnatural concerns. And I accept that Rodney raised them. But Rupert sought to reassure him with words that I accept that Rupert spoke, “Don’t worry the house is yours. I have set it up so that Barbara will be able to stay in it for as long as she wants and then you are to get it. Barbara has her own house that she will pass on to her children”.

28. I accept that this kind of conversation occurred between Rodney and Rupert on several occasions over the last 30 years. But these were conversations which were in the general nature of discussions between father and son about what the father thought would happen after his death. They were not, in my view, connected with or intended to be connected with inducing Rodney to undertake maintenance (because at that stage that was all that was left to be done) on the house. Even if they had the effect of inducing Rodney to maintain the house they were certainly not intended in Rupert’s mind to have that effect.

29. Rather Rupert’s statements about his estate were more in the nature of assurance to Rodney that he would always be a part of his father’s testamentary intentions. And such an intention behind these statements was consistent with Rupert’s oral evidence. In the witness box Rupert reaffirmed his intention to leave as much of his estate to his son as he could.

30. Rupert gave evidence at times which when considered quickly may have seemed to be an admission of parts of Rodney’s case. One example was the following:

“Q.   Was it your intention to leave the property of Broadwater to your son, myself Rodney?

A. That, at the stage that I left that to you I thought that I had no chance of selling it but now I’ve got a, another property at Evans Head who I can get, that’s on the ground, there’s no steps or stairs or anything else and so I, I want, I want to sell the property at Evans Head to purchase that place at where we are living now at Evans Head. Does that satisfy your question?

Q.   Did you tell your son when we were building the property, did you tell me when we were building the property that you were going to, you wanted your son to have the property?

A.   Yes I did. When we were building it?

Q.   Yes, when we were building it--

A.   Yeah that’s right.

Q.   --you said you wanted me to have the property?

A.   That’s right.

Q.   Back in the early 80’s?

A.   Yeah back in the early 80’s yes I did.

Q.   And that was because I was helping you build the property and we were building it for my mother and myself was it not?

A.   And you were helping me as much as you could help me because you were going to school then or you were in your leaving certificate or whatever.

Q.   Yes?

A.   Yeah. But I changed my mind since then. I want to sell it so as I can get another property that will suit us better. I am now 86.”

58. But in this and often in similar answers the defendant also emphasized the simple voluntary nature of what Rodney was doing, “You were helping me as much as you could”. Any assent on his part to anything more was in my view a confused mistake by the witness about the intention of the question. This is the case with the following example which is contrary to his affidavit evidence that I accept:

“Q.   Yeah, you just said to the Court you changed your mind, last month you told your son that you wanted me - you wanted your son to have the property, or you wanted your son - you wanted to leave the property at Broadwater in your Will to your son?

A.   I probably did say that.

Q.   Yes, yes.  Now you have - within that month now you have changed your mind?

A.   I have changed my mind, yes, I had to change my mind but I have changed it.

----

Q.   Dad, when we built the house you told your son that the property was going to be his and then, you know, in your Will or that it would be his?

A.   That’s right.

Q.   Right and then--

A.   Yep.

Q.   --numerous times like when my mother died in 1984 and in 1991 on several occasions you’ve told your son that the property was to be left to him?

A.   That’s - that’s correct.

Q.   Up and including last - last July, a month ago?

A.   Up until a month ago, yes, but I have changed my mind since then.  I mean I can leave the house to who I want to but it’s not necessarily the house being sold should interfere with that unless - unless you have some claim to it but you couldn’t afford to live there anyway.”

59. Other house maintenance - 1990 to 2013

60. For the next few years after 1986 very little happened. Then in 1990 Rodney painted the whole of the exterior of the house, which he says and I accept took him approximately two weeks. But his father came and painted Rodney’s house in exchange. I do not accept that Rodney paid Rupert for his painting work. This was just voluntary exchange of family generosity unrelated to Rodney’s future inheritance.

61. The final work done on the house was as late as Christmas 2013, when I accept Rodney’s evidence that he repainted the front steps of the house. Rodney does not claim that he did much on the house between 1990 and 2013.

62. Assessing Financial Aspects of Rodney’s Case

63. Rodney calculates that between 1981 and 1986 he contributed in excess of 1,000 hours of labour towards the building of the house. He did not provide the detail of how this amount was calculated. But whether or not this exact figure is correct it can fairly readily inferred from the parts of his evidence that I accept that he worked many hundreds of hours on or for the benefit of the property.

64. Rodney did not adduce in his case any evidence as to the value of the work that he did. No attempt was made either to adduce evidence of the value of his wages as an unskilled labourer or junior trade assistant in the early 1980’s or to assess the financial value of the work done in any other way. But no doubt his work was of some considerable value. Even if one assumes a wage of $25 an hour over this whole six year period and assumes Rodney’s figure of 1,000 hours to be correct, some $25,000 in wages forgone went into the property through Rodney’s labour.

65. The lack of financial evidence of this kind had potential implications for Rodney’s case. He was clearly warned at a directions hearing on 28 July 2015 that because he was not represented by lawyers he should either try and get legal representation for a case that was not without its complexities or he should ensure that any financial evidentiary gaps in his case were filled as best as they could be filled before the hearing. It was pointed out to him at the directions hearing that he had not adduced any evidence of the value of his work and that it was a matter to which attention may need to be given.

66. Where litigants in person appear before the Court, the Court must remain even-handed between the parties notwithstanding that one of them is a litigant in person: Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Malouf v Malouf (2006) 65 NSWLR 449. So apart from pointing out that such evidence may have been of relevance to Rodney’s case, the matter was left there. In the end no additional evidence upon this subject was adduced.

67. Rupert’s health deteriorates – Mid 1990s to 2012

68. From about the mid-1990s, when Rupert was in his mid-60s he suffered a number of medical complications which have progressively debilitated him. In 1992 he had a tractor accident in which he suffered serious injuries. I accept Douglas Rowan’s evidence that by 1995, Rupert was becoming increasingly frail. He was very frail by the time he gave evidence. Rupert appointed Douglas to be his attorney under an enduring power of attorney. In the late 1990s, after undertaking an arthroscopy procedure Rupert suffered complications including gangrene.

69. Rupert’s medical situation then remained reasonably stable for about a decade. But in April 2009 he suffered a heart attack and had stents inserted in his coronary arteries. As result of his increasing load of medical problems, I accept that Rupert explained to Rodney about this time that he realised that he and Barbara would have to move into a retirement village. He said to Rodney, “we are going to move into the RSL Retirement Village when it is built. I will have to sell the house to get the money to buy [into the village].” But the planned RSL Retirement Village was not built in the local area and Rupert and Barbara stayed on at the property until 2014.

70. In 2010 Rupert made a will giving Barbara a life estate in the Broadwater property and the remainder to Rodney. The making of this will is generally consistent with Rodney’s case, but with Rupert making adjustments because he wanted to provide for Barbara during her life, if she survived him. But the making of this will was not in my view part of a long-term arrangement between Rodney and Rupert. Rather it was the continued expression of Rupert’s affection for and attachment to his son. This was still quite evident in the witness box. Despite being cross-examined by his son Rupert quite remarkably showed no rancour towards him and affirmed in his oral evidence a clear intention to provide for Rodney under his will. He clearly continued to recognise [moral] testamentary obligations to his only son.

71. But by 2012 it was becoming increasingly difficult for Rupert and Barbara to stay on at the property. In May 2012 Rupert ceased driving. He began to find it difficult to negotiate the two storeys of the house and to keep up with the maintenance of what was a large garden.

72. Rodney says that Rupert said to him in July 2012 “This property is yours. Doug has nothing to do with the will. It will never be sold. Barbara can live there but the property is yours”. Rupert denies that he said this to Rodney. But I find that he did say something to this effect to Rodney. Indeed Rupert made a number of admissions in the witness box under cross-examination from his son, which gave the Court the strong impression that in recent years, as he became frailer, Rupert would say to whoever was with him what he thought would please them. But this statement does not prove much in Rodney’s case. It was not a statement about any existing arrangement between Rupert and Rodney of the kind that Rodney alleges in these proceedings. It was nothing more than a father-to-son explanation of what was in Rupert’s 2010 will.

73. Rupert and Barbara move to Evans Head – 2014 to 2015

74. By the second half of 2014 Rupert’s inability to manage at the property became more acute. Rupert and Barbara decided to purchase a property in Evans Head, about half an hour’s drive from Broadwater. The Evans Head property is constructed all on one level and is more internally accessible for Rupert. It is located fairly close to where Douglas lives.

75. By arrangements made in October and November 2014 Douglas supplied the whole purchase price including stamp duty (totalling $452,100). For him and Rupert and Barbara all to purchase the Evans Head property. The property was purchased on the basis that Douglas acquired 50% and the defendant and Barbara took the other 50% jointly and that Rupert and Barbara owe Douglas half the purchase price, namely $226,050. The written arrangement among the three of them is that Douglas will be repaid the $226,050 when Rupert and Barbara sell the Broadwater property, which was listed for sale in December 2014, or when they otherwise agree.

76. Two other recent matters were the subject of contested evidence in the proceedings. But neither of them was of significance for the issues which the Court must now decide. They are mentioned here only for completeness. The first is an application Rodney made to the Guardianship Division of NCAT for the appointment of a financial manager over Rupert’s affairs. In those NCAT proceedings Rodney alleged that Rupert is suffering from Alzheimer’s disease and was being forced to make financial decisions such as selling the property, which are contrary to his earlier wishes. The NCAT Tribunal dismissed the plaintiff’s application in April this year.

77. The other contested matter which occupied Court time was that in July this year, after this matter been listed for hearing, Rodney took Rupert by car from a location where he undertakes regular respite care, the Red Dove Centre, at Woodburn, to the offices of the NSW Trustee and Guardian in Lismore and then to a number of other legal firms in Lismore. What was Rodney’s purpose in doing this was the subject of contest. Rodney said Rupert had confided in him that his will had been changed to rename Rodney and that Rupert did not want this. But this is not a contest that the Court now has to decide.

78. Procedural History

79. These proceedings commenced after Rodney lodged a caveat over the property on 23 February 2015, claiming an interest in the property. The estate or interest claimed under the caveat was that “the proprietor holds the above-mentioned land on constructive trust and/or subject to an equitable charge in favour of the Caveator.” The facts relied upon to support the interest claimed were that “the proprietor made a promise to transfer the land to the Caveator, by way of either gift or will, on the basis that the Caveator would provide assistance to build the family home on the land. The Caveator fulfilled his obligations under this agreement.”

80. Rupert served a lapsing notice on Rodney pursuant to Real Property Act 1900, s 74J on 16 March 2015. Rupert did not consent to an extension of the caveat so Rodney applied to the duty judge on 1 April 2015 and obtained orders extending the caveat. On 11 May 2015 the Registrar in Equity set the proceedings down for hearing before me on 21 August 2015.

Credibility Issues

81. The plaintiff was a tense, nervy and distractable witness who spoke very quickly. He was very suspicious of his questioner, Mr Turnbull of counsel, and often interrupted himself during his answer, somewhat obsessively, to add further material. His responses were full of commentary about and reflections upon the answers he had just given. He was definite about many of his answers and made subtle distinctions consistent with his tertiary education and professional background. The plaintiff had the curious habit of referring to himself in the third person, as his father's "son". But in my view there was a significant element of reconstruction in the plaintiff’s account of his motivation at the time he was working to construct the house on the property in the first half of the 1980’s. I do not accept that he was doing this work acting on representations that he would inherit the property.

82. The defendant, elderly, frail and hard of hearing, he was a difficult witness to assess. He seemed to want to say things just to please his son, the plaintiff. He appeared to make some admissions that suggested that he had made the promises that had been alleged against him but had since changes his mind: evidence that would of course assist the plaintiff’s case. But I doubt that he fully understood these questions. His answers at times contradicted his affidavit evidence which had denied making some of the representations alleged.

81. And at times he denied he had ever intended to give his son an interest in the Broadwater property. I generally accept these statements, as they reflect his affidavit evidence and the probabilities. At other times he said he did intend to provide for his son in his will.

82. Relevant Legal Principles and Analysis

83. The plaintiff’s case was not pleaded. But the Summons appears reasonably well to articulate a claim for relief based upon doctrines of promissory estoppel and proprietary estoppel. That is how the defendant and the Court interpreted the Summons. The relief sought in prayer 3 of the Summons perhaps best articulates the plaintiff’s principal case: “that the defendant is estopped from dealing with the property contrary to the assumed state of affairs encouraged by the defendant that the property would upon the defendant’s death become the property of the plaintiff.”

84. The applicable law in relation to promissory estoppel may be shortly stated. In Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 the High Court made clear (at 428 – 429 per Brennan J) that to establish an equitable estoppel a plaintiff must prove that: (1) the plaintiff assumed or expected that a particular legal relationship would exist with the defendant and the defendant would not be free to withdraw from that relationship; (2) the defendant induced the plaintiff to adopt the assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment.

85. On the findings that the Court has made, Rodney’s claimed estoppel is not made out. Most of its ingredients have not been established. First, it can perhaps be accepted in a general sense that Rodney did for a long time hold an assumption or expectation that he would receive the property after Rupert’s death. But in my view he did not hold any assumption or expectation that Rupert would pass it on to him after death if he (Rodney) undertook building work to help construct a house on the property, such that Rupert would not be free to withdraw from that assumed relationship. In my view Rodney’s work on the house was done unconditionally, as might be expected of a teenage boy contributing to the combined family welfare.

86. Secondly, Rupert did not induce Rodney to hold that assumption or expectation. To the extent the Rodney held any assumption or expectation of inheritance of the property, particularly when early building work was being done, it was largely self-generated assumption or expectation.

87. Thirdly, Rodney did not act or abstain from acting in reliance upon the assumption or expectation. His decision to work on the house in the 1981 and 1982 period and beyond was entirely sourced on an understanding that he and his parents rapidly needed to have a roof over their heads and a stable physical environment in which they could all live and he could study.

88. Fourthly, at no stage in my view did Rupert intend Rodney to act upon an assumption or expectation of the kind Rodney alleges. In my view, Rupert, to the extent that he spoke about the property becoming Rodney’s, was doing so in general terms disconnected in his own mind with the work Rodney was then doing on the house. Rupert did not intend to induce any action on Rodney’s part on the basis of his statements. Rather they were on his side innocently disconnected with the work being done.

89. The fifth and sixth ingredients do not arise. The plaintiff will not suffer relevant detriment because the assumption or expectation does not need to be fulfilled. Although it is evident that the assumption or expectation relied upon has not been fulfilled.

90. Rodney may also perhaps rely on the proprietary estoppel cases, depending as they do upon a defendant’s alleged “encouragement”, in the cases derived from Dillwyn v Llewelyn (1862) 45 ER 1285; De GF & J 517, or the “acquiescence” cases following from Ramsden v Dyson & Thornton (1866) LR 1HL 129. But it seems to me that these doctrines add little to the plaintiff’s case.

91. The proprietary estoppel cases also provide good examples of equity courts granting relief on principles of proprietary estoppel but making adjustments in order to do equity between the parties: see for example ER Ives Investment Limited v High [1967] 2 QB 379 and Austotel Pty Ltd v Franklins Self Serve- Pty Limited (1989) 16 NSWLR 582 at 607-8 per Priestley JA. Had the plaintiff’s case otherwise been made out and had the issue been properly articulated, one possible form of relief which the Court could have considered (and which is contemplated by prayer 2 of the summons) is the grant of an equitable charge over the property to recoup the value of the plaintiff’s expenditure. This charge might have been realisable on the sale of the property.

92. But the plaintiff’s claim has not otherwise been made out. And the lack of any proper evidence about the financial or construction value of the plaintiff’s work would make it virtually impossible to quantify any such relief.

93. Conclusions and Orders

94. The plaintiff has been unsuccessful in his claim. He has not been able to establish the necessary ingredients of either a promissory estoppel case or a proprietary estoppel case against the defendant. The principal difficulties in the plaintiff’s case are that he has not been able to show: (1) that he held the assumption or expectation that he alleges that the property would upon the defendant’s death become his property because of his work on the property; or (2) that the defendant induced him to hold any such an assumption or expectation.

95. The Court therefore will order that:

1. The plaintiff’s summons is dismissed;

2. The plaintiff will pay the defendant’s costs of these proceedings.

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Decision last updated: 31 August 2015