Thomas v Thomas - [2002] WASC 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THOMAS -v- THOMAS [2002] WASC 40

CORAM: MURRAY J

HEARD: 6 & 7 MARCH 2002

DELIVERED : 14 MARCH 2002

FILE NO/S: CIV 1688 of 2000

BETWEEN: DENNIS STEPHEN THOMAS
Plaintiff
AND
RAYMOND PAUL THOMAS
Defendant

Catchwords:

Equity - Claim for equitable compensation - Other causes of action include claim for unpaid rent, damage to house and repayment of loan - Counterclaim for unpaid wages - Limitation of actions - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed
Counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: In person

Solicitors:

Plaintiff: In person
Defendant: In person

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MURRAY J: The plaintiff is now aged 51. The defendant is his son. He is now aged 31. He has a brother, Stephen, who is now aged 33. The events with which this action is concerned commence with the death of the plaintiff's father on 28 September 1988 at which time the plaintiff was aged 38, the defendant was about 18 and his brother about 20. It appears that since the boys were both small they were raised, not by the plaintiff whose marriage broke up, but by their grandmother, Marjorie Thomas, and their grandfather. However, by the time of their grandfather's death Stephen was living independently and so probably was the defendant, although he may then still have been engaged in a hospitality course at the TAFE college in Geraldton.
At the time of the grandfather's death, he and Marjorie owned a house at 57 Waldeck Street, Dongara, as joint tenants. It was their family home which had in fact been built by their son, the plaintiff, who has practical skills in the building industry where he follows the trade of a plasterer. The arrangement between the parties by which the house was built, probably in about 1984, is not relevant to these proceedings.
As the plaintiff's parents owned the property as joint tenants, it passed by survivorship to Marjorie Thomas upon her husband's death. Within about a year after that date, and so in the latter part of 1989, Mrs Thomas had decided that she had no ties to hold her in Dongara. Her friends were in Collie where she also had relatives, as did the Thomas family. Indeed, the plaintiff owned a house there which he rented out. It seems that Marjorie Thomas had accommodation available to her there and so she decided to return to Collie.
This case is principally about what then happened to 57 Waldeck Street, Dongara, and the way in which the parties dealt with it. The first part of the story involves the plaintiff and his mother. The plaintiff's case is, and his evidence was, that in Dongara he discussed with his mother what was to be done with the house and they agreed that she would sell it to the plaintiff for the sum of $60,000. The arrangement was, he says, that he was to pay his mother $800 immediately to help her with the expenses of her relocation to Collie. Thereafter, he says, he was to pay an amount of $100 per week, and he says he did so until about the middle of 1998 by the simple device of allowing her to take for her use the $100 per week rental which he was obtaining from his house in Collie. He continued to pay the expenses and outgoings in relation to that house and so, he says, she effectively had the $100 a week clear for her support. If she did receive these amounts on a regular basis, it can be seen that by the middle of 1998, the plaintiff would have paid, not $60,000, but only about $45,000 towards the purchase of the house.
Nonetheless, he says, in later years, he thought in about 1996, his mother wrote to him to say that to avoid arguments if she should die, the house should be transferred into his name. He did nothing about that and I doubt that there was any such letter. The plaintiff could not produce it and I found his explanation for its loss unconvincing. In addition, he said that he showed the letter to both the defendant and his de facto wife, Natalie. That was not put to the defendant when he gave evidence, but from his evidence, if that is accepted, it would be clear that he saw no such letter because he denies knowledge of any arrangement between the plaintiff and his grandmother of a kind which would give to his father any interest in the property. Natalie was not called to give evidence.
The plaintiff was able to produce no contemporaneous documentary evidence to support his account of the agreement made between his mother and him for the sale of the house. It was not reduced to writing and it is clear that Mrs Thomas provided no account to the plaintiff to record any sums she received on his behalf towards the purchase of the property.
Mrs Thomas was called as a witness. When asked by the plaintiff the direct question whether she sold him the house in Dongara and took the rental money in payment for it, she denied it. She said that when she was to leave Dongara, she had in fact offered to sell Waldeck Street to the plaintiff for $80,000. He refused to purchase it at that price. She said he could have it for $65,000 but no agreement to purchase at that price was made. She simply packed up and left and she appears to have done nothing to dispose of the property in Dongara. She said that she was aware that the plaintiff "took over the house and rented it to his friends." As I understand it, the plaintiff was living with his female friend, a Ms Mancey, in her house at 18 Osborne Way, Port Denison.
As to the rental money from the plaintiff's house in Collie, Mrs Thomas agreed that she received that money. She said that arrangement came about because the plaintiff asked her, in effect, to manage the property for him, and said that she could keep the rent that she collected. She agreed to this arrangement, but she said the property was a headache for her. She often had trouble with the tenants, the property was damaged, electricity and water charges and rates were not paid and she had to meet these expenses before she could let the house to a new tenant. After coal mines closed in Collie, she found she could not rent the property for a considerable period and she had to sleep in it to avoid having it damaged by vandals. In short, her evidence was that this arrangement had nothing to do with a process of paying for 57 Waldeck Street.
I am inclined to accept her evidence generally, although there was clear evidence of confusion as to time and some of the events. For example, she said that when she received that rental money, it came in handy to help her care for the plaintiff's sons whom she described as being then little boys, which clearly they were not. However, she was clear in her evidence that there was no concluded agreement in the terms to which the plaintiff testified, although prior to her leaving Dongara, she accepted that there was a discussion about the disposal of 57 Waldeck Street. I accept that evidence.
The plaintiff also called his friend, Ms Mancey. It had not been suggested to Mrs Thomas that she was present at the discussion in Dongara, but she said she was there. The conversation took place at 57 Waldeck Street. When asked what Mrs Thomas said, Ms Mancey replied to me:
"Virtually there was nothing left for her in Dongara. She was moving back to Collie and the house was going to be Dennis's and it was walk in‑walk out."
She said Mrs Thomas used the words "walk in‑walk out" and the witness understood Mrs Thomas to mean by that that she would simply take her personal things and leave everything.
That was her evidence in answer to my question, but the plaintiff had already asked her leading questions on the subject of "when I first acquired the house of my mother". She said, "It was going to be walk in‑walk out." She then said that she and the plaintiff had travelled to Darwin (perhaps a holiday). After they returned, she agreed with the plaintiff that Mrs Thomas telephoned "and she wanted some money". Because Ms Mancey does the paperwork for the couple's business affairs, she sent $800 by money order. She added that she could recall sending three other such money orders, in each case for the sum of $1000, and there was also a large water bill which was paid in respect of the Collie house.
It will be noted that although there was no precision of detail in respect of this evidence, it is an account of what occurred which is different, both from that given in evidence by the plaintiff and by Mrs Thomas. Nor is it clear from Ms Mancey's evidence what Mrs Thomas meant by the statement that the plaintiff could have the house on a walk in‑walk out basis. If that phrase was used I think it is not inconsistent with that part of Mrs Thomas's evidence that she simply left the property and allowed the plaintiff to take it over.
However that may be, in my opinion, the plaintiff fails to make out this important link in the chain of his claim. I am not prepared to find on the balance of probabilities that there was an agreement by Mrs Thomas to sell 57 Waldeck Street to the plaintiff for the sum of $60,000, or at all. I think it is likely that the $800 was sent, as Ms Mancey says, because Mrs Thomas telephoned and said she needed some money. I accept that Mrs Thomas had the use of the rent money from the plaintiff's property in Collie, but I think this arrangement was probably in the terms about which she testified and was not an arrangement of the kind of which the plaintiff spoke.
I note that in that regard he could not, if the arrangement was as he said, have supposed that by the middle of 1998 he had paid what he regarded as the agreed price for the property; nor is it to be supposed that the plaintiff seriously considered that his mother had had the benefit of the receipt of $100 per week in the circumstances affecting the rental of the Collie property about which she spoke. It is unnecessary for the purpose of making these findings that I should reach a final conclusion as to whether the plaintiff has, over the years, persuaded himself that an arrangement of the kind of which he spoke was made so as to give him an equitable interest in the property or whether his evidence in that regard was deliberately dishonest. The defendant, of course, had no evidence to give about this alleged transaction.
The next significant events occurred in about 1996. The plaintiff said that it was then that it was agreed, not that the property should be transferred into his name, but that it should be transferred into the joint names of the defendant and his brother, Stephen, although on the understanding that the plaintiff would have a life interest in the property, that he could live there rent‑free for the rest of his life, remembering that he was by this time only about 46 years of age. The evidence did not satisfactorily explain why the plaintiff should agree to this when, according to his evidence, he was in the process of buying the house outright.
The plaintiff said this arrangement was made, again orally, at Dongara between him and the defendant who was at that time living in the house. It must follow from the plaintiff's evidence that Mrs Thomas was acquainted with this arrangement and agreed to it because on 6 August 1996, a transfer of the property from her to the defendant and Stephen, as tenants in common in equal shares, was registered.
But the evidence of Mrs Thomas was simply that she gave the house to the two boys, the defendant and his brother. That was the evidence of the defendant also. His evidence was that his grandmother told him in mid‑1996 that she wanted to get rid of the house and proposed to give it to the defendant and his brother. He therefore instructed a settlement agent, the necessary transfer was prepared, Mrs Thomas signed it on a visit to Dongara, and the transfer was duly registered in August 1996. The defendant said that in some way the plaintiff found out what had happened.
By this time the defendant had for some time with his partner, Natalie, been conducting the business of a Chinese restaurant in Dongara. The plaintiff telephoned him there and said he was coming to the restaurant to sort out what had occurred with the house. He arrived, gravely intoxicated, and attacked the defendant. When the plaintiff was getting the better of him, Natalie intervened and beat the plaintiff off with a stick. The plaintiff denies this version of that incident. He says that when he went to the restaurant he was not intoxicated. He went there to discuss the matter and he was then set upon by the defendant and Natalie together, she being armed with a stick. He said that he would not attack the defendant who held a brown belt in karate and conducted a karate school in Dongara.
I find it difficult to see why the plaintiff would in this way want to go to the defendant's restaurant to discuss what had occurred with the house if it was the case, as he pleads and as he gave in evidence, that the transfer of the property from his mother to his sons was arranged by him. The defendant's version of this incident is more likely to be true, in my opinion, and that conclusion tends to refute the plaintiff's account of how the property came to be transferred into the joint names of his two sons. The evidence of Mrs Thomas also supports that view of the facts.
On this evidence, I am not prepared to find that the property was then legally owned by the defendant and Stephen subject to an equitable life interest in favour of the plaintiff or, as the statement of claim puts it, subject to a trust in favour of the plaintiff as a life tenant. It is unnecessary in those circumstances to have regard to the operation of the Transfer of Land Act 1893 (WA) in respect of unregistered interests in land or encumbrances, or the provisions of the Property Law Act 1969 (WA), s 34 and those following in respect of the capacity to create interests in land by parol.
This conclusion of fact is arrived at despite the evidence of statements made by the defendant in the course of proceedings in the Geraldton Court of Petty Sessions on the application of the defendant and his partner for apprehended violence restraining orders under the Restraining Orders Act 1997 (WA).
In proceedings on 8 December 1997, the defendant said, "… the house was supposed to be his [the plaintiff's] but the house was put into our names in case his mother died and there was legal wrangling between his brothers and sisters."
Later, on 1 April 1998, in similar proceedings, the defendant, giving sworn evidence, said about 57 Waldeck Street that:
"It's not my home. I have – I own it legally but it's still my father's. I understand that."
He continued:
"The house was legally left to me and my brother but by word of mouth it's my father's house left by his mother. But it was put into our names in case she was to have a stroke or just suddenly die. That way his brothers wouldn't be able to fight the will and take half the house or take all the house. Now what I did is – morally it was wrong, but I intend to sell the restaurant and pay for the house again."
He said of the incident at the restaurant that he and Natalie tried to explain that to the plaintiff, but he was too intoxicated and angry and the fight occurred. Those proceedings ended with the acceptance of an undertaking by the plaintiff to have no further contact with the defendant or his partner in such a way as might lead to violence or a reasonable apprehension of violence.
The defendant says, and I accept it to be the case, that he has no loving relationship with his father. He has always been afraid of the plaintiff who, he says, has behaved violently towards him and is a person who seeks to control others by holding out something of benefit and then taking it away. It matters not whether or not any of that is true. The relevant fact is that, with or without justification, the defendant is, I find, afraid of the plaintiff. He explained that when giving evidence in the Court of Petty Sessions, he sought to mollify his father, who was present in court contesting the application for the violence restraining order, by offering to accept that the position with respect to the house, and its beneficial ownership, was as his father asserted. Despite the fact that he was then on oath, the defendant says, and I accept, that in the terms quoted, his evidence was untrue. He was, in effect, trying to, "buy off" his father by the concessions he made.
There is another element to this aspect of the case to which I should attend. The statement of claim, cl 7.2, pleads that after the property was transferred into the joint names of the defendant and Stephen, "the plaintiff continued to reside on the property and paid all rates, taxes and other outgoings in respect of the property". In fact the only evidence that he paid any such outgoings is in respect of shire rates and water service charges for the 1999/2000 financial year. These accounts were paid in July and August 1999. The defendant suggests that the plaintiff did this in an endeavour to provide evidence to support his claim to an equitable life interest in the property.
Contrary to the pleading, the plaintiff was not at the relevant time, in August 1996, living at 57 Waldeck Street. The position is, pursuant to another part of the statement of claim and the evidence of both the plaintiff and the defendant, that the defendant and Natalie resided at 57 Waldeck Street from about 26 August 1992, paying rent of $100 per week until 19 October 1993. At that time the restaurant was struggling but the defendant hoped that business would pick up over the Christmas/New Year period. He was having difficulty paying the rent and approached his father for some relief. The plaintiff agreed to suspend the rent obligation on the basis that the defendant could resume payment and pick up the arrears after the hoped for improvement in the business of the restaurant.
The plaintiff says, however, that the defendant never resumed payment of the rent, and that he and his family continued to reside at 57 Waldeck Street, paying nothing other than some of the expenses and outgoings in respect of the property, until he eventually built his own house on his own property and moved out in November 1997, a period of four years, during which the plaintiff says he took no action to resolve the position, simply foregoing the receipt of any income from the property at 57 Waldeck Street, although he continued to regard it as being his property.
The defendant agrees that he paid no rent during the period in question. He said in evidence that although the initial arrangement was that the payment of the rent would be suspended for a period at the end of 1993 until he had more funds at his disposal, the business did not in fact pick up and he therefore approached his father saying that he was still in difficulty. His evidence was that the plaintiff told him that he should not concern himself with the payment of rent and, indeed, having already provided the defendant $5,000 by way of working capital for the restaurant business upon its acquisition, the plaintiff told the defendant that if he needed more funds to assist with the business, the money was there and he only needed to ask for it.
It will be recalled that following the death of the plaintiff's father in 1998, and the departure of his mother about a year later, the plaintiff had had the use and benefit of 57 Waldeck Street as a rental property. I think the defendant became a de facto tenant. There is clear evidence that he paid rent for about 14 months and then he stopped and yet he was permitted to reside in the property after that time. I think it unlikely that the plaintiff would have allowed the defendant to live there for four years simply on the basis that a rental commitment of $100 per week was accumulating unpaid over the whole of the period, particularly in view of his reaction to the discovery in August 1996, or shortly thereafter, that the property had been transferred into the joint names of the defendant and Stephen. Thereafter, of course, as would have been painfully apparent to the plaintiff, the defendant was an owner of the property and the financial terms upon which he continued to reside there were a matter for him and Stephen to resolve.

I think the plaintiff, who had no right to charge rent for the property, except that which was allowed him by his mother, excused the defendant from the obligation to make any payment in respect of his residence in the house. The defendant took advantage of this at least to August 1996, despite the fact that, as I think he himself concedes, he might well have resumed the payment of rent well before this time. That is not to his credit but I am satisfied that there is no liability for the sum of $21,400 claimed, together with interest under the Supreme Court Act 1935 (WA), s 32, for unpaid rent for a period of over four years.
In the early part of 1997, the defendant had reached the position that he had his own property upon which he was proposing to build his own home. He and his brother agreed that Stephen would buy his half share of 57 Waldeck Street for $45,000. Stephen obtained a loan to make this purchase and for other purposes. 57 Waldeck Street was then unencumbered and Stephen secured the loan by a mortgage granted over the property. On 8 May 1997, a transfer of the property from the defendant and Stephen as tenants in common, to Stephen solely, was registered. The defendant remained in residence with his family, presumably while he organised the building of his own home. It appears that he paid rent to Stephen in the sum of $100 per week.
In any event, when the defendant was able to move into his new home, and he left 57 Waldeck Street in November 1997, it seems that the plaintiff moved in. He complains, and I accept that it is the case, that damage had been done to the property. There is photographic evidence and the evidence of Ms Mancey to support that of the plaintiff, that he had to repair damage to the walls and doors and to the toilet where the cistern had been physically removed from the wall. There was a major task to clean and put in working order a gas stove. The plaintiff plastered and repainted. He says that the value of his labour for the work which was required was in the order of $3,000. He claims that amount but, of course, he did the work as a volunteer. The house belonged to Stephen and the plaintiff had no entitlement to be there at all.
Thereafter, the plaintiff lived in the house and paid no rent. Stephen appears to have been at a loss to know what to do about this, but because he was receiving no income from the property he fell behind in his payments to the mortgagee with the result that, sadly, the mortgagee foreclosed and on 21 March 2000 it obtained judgment for the amount owing and interest as well as an order for possession of the property.
As I understand it, at some time at the end of 1999, the plaintiff was ejected from possession. He had been there therefore for a period of some two years. In my opinion, he paid nothing in relation to the property except towards the very end when he paid those two accounts to which I have referred. Stephen had telephoned and told the plaintiff that he wanted him out, as I understand it, shortly after the property was transferred into his name, but the plaintiff refused to go, taking the view that he remained entitled to the house, a view which he apparently expressed at some time during this period by writing slogans in paint on the exterior walls of the house.
For completeness, I should say that in the proceedings in the Court of Petty Sessions on 1 April 1998, the defendant, in an endeavour to obtain some assurance that the plaintiff's drink‑related violent behaviour, as the defendant saw it, would stop, offered to pay to the plaintiff the sum of $45,000 which he had received from Stephen for the sale of his half share of the property "for the house and the rent" which the defendant accepted might amount to $12,000 to $13,000 over the period during which the defendant had resided at 57 Waldeck Street rent free. For the reasons I have already given, I do not take this offer to be an admission of liability, but to have been quite differently motivated.
There are three other factual matters to which brief reference should be made. I have mentioned that the house was damaged when the defendant lived there. The photographs show the damage clearly. I accept that they were taken when the plaintiff moved in after the defendant vacated the premises in November 1997. I do not think the damage was done deliberately to cause injury to any other person at that time. Indeed, much of it was probably done much earlier. The damage was clearly caused by striking blows to the walls and doors, by removing the cistern from the wall of the toilet, no doubt because it was leaking and damaging the wall, and I accept that a considerable amount of work was required to clean the gas stove.
As I have said, I accept that the plaintiff did the work of replastering, repainting and cleaning up generally. His evidence about that is corroborated by Ms Mancey who helped him. He claims compensation in the amount of $3,000 from the defendant, and although there is no evidence of any demand for payment, he claims interest on that sum under s 32 of the Supreme Court Act. The $3,000, the plaintiff said, was made up of some minor unspecified expenditure for paint, plaster and the like, but principally was the value he placed upon his labour for the time that it took to effect the repairs. No evidence was given as to how that was calculated, but there are more fundamental difficulties in the way of this claim.
In the first place, on my findings of fact, the plaintiff had no right to be there at all. He sought no permission to move in. He did the work as a volunteer to effect improvements to a house which was by then solely owned by Stephen. Not only was he not asked to do the work by Stephen, but when Stephen found out that the plaintiff was in residence he telephoned and told him that he had to go. Stephen wanted to rent the house to help him pay the instalments required under the mortgage. Further, although, as I find, the damage was done when the defendant and his family resided in the house, there is no evidence to enable me to draw the conclusion that, apart from the unclean state of the stove, the cleaning of which was done by Ms Mancey, the damage to the house was caused by the defendant or any person or persons for whose behaviour the defendant would be responsible as a matter of law.
The plaintiff pleads that before 19 October 1993, the date upon which, it will be recalled, the defendant stopped paying rent to the plaintiff, he loaned the sum of $15,000 to the defendant for him to use as working capital upon his acquisition of the restaurant business. It is pleaded that the plaintiff and the defendant agreed that the loan was to be repaid within a reasonable time of the business becoming operational or, in any event, upon demand. It is pleaded that the business became operational by 1994 and has been operated since then. It is said that demands were made by the plaintiff that the defendant repay this sum, but he has not done so. An order that the defendant pay the sum of $15,000, together with interest, is sought.
When the plaintiff gave evidence about this, he spoke about the loan of $15,000. The defendant had pleaded that in or about October 1993, the plaintiff made a gift of approximately $15,000 to him. When the defendant gave evidence about that, he said that the true amount was $5,000. From the well of the court the plaintiff agreed, saying the lawyers had made a mistake when the pleadings were prepared. It all seems rather odd to me, but if I accept that the amount in question was $5,000, the question really is whether it was a loan to be repaid or a gift.
The plaintiff said it was a loan made as between father and son, "when he gets going, pay the money back." The plaintiff said he had never asked for the money. He accepted that the defendant would "pay it back when he feels fit or has the money." The defendant simply says that it was a gift made when the restaurant was acquired so that stock for the restaurant could be bought.
If this was a loan repayable on demand, it seems clear that no demand has been made or is even now made. Under those circumstances, no order for the payment of the money, with or without interest, could be made, but in truth I think it is more likely that the funds were provided informally and it was left to the defendant whether he wished to treat the provision of those funds as a gift or whether he thought it was appropriate, when his financial position allowed, that he should repay his father all or some part of the money.
Finally, there is a counterclaim by the defendant who says that for four years, between October 1989 and October 1993, the plaintiff employed the defendant as a builder's labourer for about 20 hours per week, the relevant term of the employment contract being that the plaintiff would pay the defendant the sum of $288 per week gross "or alternatively a reasonable sum" by way of wages. It is pleaded that nothing was paid. The contract was breached and wages at the rate of $288 per week are claimed from October 1989 to October 1993.
The plaintiff admits that for a total period of about five months during the four years mentioned, the defendant was employed by him "on a casual basis and was paid a reasonable sum for the time he was employed." In further and better particulars, and in his evidence, the plaintiff added that:
"… such work as the defendant did was remunerated by the plaintiff in cash, goods or services (such as assistance with the re‑building of the defendant's car, a refrigerator, freezer, lounge and microwave, assistance with the renovation of the defendant's restaurant and services performed by the plaintiff for the defendant such as washing dishes and shelling prawns at the defendant's restaurant)."
The plaintiff added when giving evidence that he helped with the restaurant out of fatherly love and he said that it was nonsense to suggest that he agreed to pay the defendant $288 a week. He said, and I have no reason to disbelieve him, that, averaged out over those years, that would have been more than he would have earned as a plasterer himself.
The defendant said in evidence that the 20 hours per week was the period which, on his calculation, on average he worked for the plaintiff. He said that he was not saying that he was not paid anything by his father but, he said, "I was – I wouldn't say duly compensated, but my father bought me bits and pieces such as fridges, lounges and stuff", "second‑hand stuff that we picked up, but I wouldn't say I was duly compensated for a lot of the work I did. I felt more like a slave." When asked where the figure of $288 came from, he made it clear that this was not an agreed amount for wages, but he said that he understood it represented a labourer's rate of pay over 20 hours a week, ie, at $14.40 an hour. However, he said he had no idea whether that was an appropriate rate and, in truth, there is no evidence to support the claim as pleaded.
I am unable to find a contract of employment for the period and at the rate of remuneration sought. I think the true situation is really that which may be drawn from the evidence of both the plaintiff and the defendant. From time to time, the plaintiff got the defendant to help him out with work he was doing. There was no specific agreement about hours and remuneration. Some cash payments were made and other things of the kind pleaded were bought by the plaintiff for the defendant. The plaintiff sought to return the favour by assisting from time to time with the restaurant. The arrangement was entirely of an informal kind. So far as it constituted a contract of employment, I am unable to find facts which would enable me to conclude that the contract was breached. It may not have provided the defendant with adequate compensation for the work he did, but that is not to the point.
Both parties plead that particular claims made by the other are statute barred. As will already be evident, it is unnecessary that I consider those pleadings. I prefer to deal with the merits of the particular claims made. I need say no more about the defendant's counterclaim which I dismiss.
As to the various claims made by the plaintiff, I would summarise my views in the following manner. The plaintiff's mother made no agreement with him for the sale to him of 57 Waldeck Street. It was simply the case that when she left, he assumed the authority to use the property and rent it. There was a specific arrangement for her to manage his property in Collie and to take the rent which was payable to him for it. There was no agreement involving the plaintiff that 57 Waldeck Street should be transferred jointly to the defendant and Stephen subject to an equitable life interest in the plaintiff. It was the idea of Mrs Thomas that she should give the property to her grandsons, and she did so in August 1996. At that time, the defendant had been living there with his family for some four years. He had paid rent to his father until October 1993, but thereafter he paid nothing. He continued to reside in the house after it was transferred into the joint names of himself and his brother. The plaintiff did not then have, and had never had, any legal or equitable interest in the property. There is no liability for unpaid rent.
By early 1997, the defendant was moving to acquire his own property and build his own home. He agreed with Stephen that Stephen would buy his half share of 57 Waldeck Street for the sum of $45,000. Stephen raised that money, secured by a mortgage over 57 Waldeck Street. He paid the defendant the $45,000. That was not a transaction in which the plaintiff had any interest, or which was of any significance so far as the plaintiff was concerned, legally or in equity. The property was transferred to Stephen in May 1997. The defendant continued to live there, paying Stephen $100 per week rent until he vacated the premises in November 1997 and moved into his own home. No sooner had he done so, then the plaintiff moved in. He made repairs and cleaned the house, but he did so as a volunteer and he is not entitled to claim any compensation from the defendant. Nor may the plaintiff claim from the defendant that he repay the sum of $5,000 paid to him for assistance in the establishment of the restaurant business in 1993. The plaintiff's claims are dismissed.