Wakelam v Boardman

[2007] NSWSC 567

CITATION:	Wakelam v Boardman [2007] NSWSC 567
HEARING DATE(S):	16 May 2007
JUDGMENT DATE :	16 May 2007
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Plaintiff’s claim that deceased’s house held on trust for him by executor on the basis of proprietary estoppel dismissed.
CATCHWORDS:	ESTOPPEL – Equitable estoppel – Proprietary estoppel – Deceased represented he would leave plaintiff his house in his will – Plaintiff carried out work on deceased’s house – Plaintiff did not act in reliance upon representations – Plaintiff did not suffer detriment as no change of position – No basis for proprietary estoppel
CASES CITED:	Sullivan v Sullivan [2006] NSWCA 312 Waltons Stores Interstate Limited v Maher (1978) 164 CLR 387
PARTIES:	Geoffrey Wakelam (Plaintiff) David William Boardman (Defendant)
FILE NUMBER(S):	SC 1405 of 2007
COUNSEL:	Mr E Cox (Plaintiff) T Morahan (Defendant)
SOLICITORS:	Adrian Holmes Lawyer (Plaintiff) Hozack Clisdell Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

WINDEYER J

WEDNESDAY 16 MAY 2007

1405/07 GEOFFREY WAKELAM V DAVID WILLIAM BOARDMAN

JUDGMENT

1 HIS HONOUR: The defendant is the executor of the will of Duncan Langford Stewart Ridley, deceased, who died on 6 November 2006. The plaintiff is the husband of a niece of the deceased. In these proceedings he seeks an order that the deceased's home at 15 Grantham Road, Batehaven, be declared to be held on trust for him absolutely on the basis of proprietary estoppel, based on claims that the deceased made representations to him that the property would be so left by his will and that, acting on the basis of those statements, the plaintiff carried out work on that home for the deceased in the expectation that the representations would be made good and that in doing so he acted to his detriment.

2 In these matters where family members are present in Court, to avoid undue suspense, I always state at this stage the result and, therefore, I state that in my view the plaintiff's claim fails. Because the decision is being given immediately, because I have come to a certain conclusion and because everybody interested is here, I may not give references to authorities and I may insert them in the judgment at a later stage.

3 As I have said, the plaintiff is married to a niece of the deceased. The deceased was not married and died without children. Under his last will, dated 2 March 2006, he appointed the defendant, Mr Boardman, as executor, the defendant being the husband of another niece of the deceased. In other words, the two ladies in question are cousins.

4 Under his last will the deceased gave an antique Yonkers carbine rifle to the plaintiff "subject to his paying the funeral expenses in accordance with an agreement reached between us many years ago". He gave some other pecuniary legacies, most to charities, and he gave the rest of his estate to his niece Mrs Boardman, the wife of the defendant.

5 The facts so far as the plaintiff's case is concerned are that the deceased lived up until about 1984 on a farm in Victoria and that he, the plaintiff, and his wife visited the deceased from time to time and helped him with work around his farm. In about 1984 the deceased sold that farm and moved to Batemans Bay where the plaintiff and his wife were living. Mr Ridley lived with them for some time while he looked for a home which he ultimately found, being the property to which I have already referred.

6 From that time on, namely from about 1984 and into 1987, the plaintiff says, and this is not disputed, that the deceased made various statements to him about leaving the house to him. For instance, at the time when the deceased purchased the property at Batehaven and while Mr Wakelam was helping him move into it Mr Ridley said: "If anything happens to me you will get this house because you have been so good to me" to which the plaintiff said, "Thank you very much". This was the first time there had been any discussion about a will.

7 There was other work done by Mr Wakelam on the Batehaven property including fixing up a blocked sewer line and a considerable amount of drainage work. The plaintiff says that before he started to do this quite substantial work, which took two or three days, he said to the deceased, "I won't charge you anything because I am going to end up with the house anyway" to which the deceased said, "the house would be yours anyway in the long run, the work you are doing is improving your property".

8 Later on that same year, namely, in the winter of 1984, the plaintiff purchased a new gas heater for the deceased and installed it. There was some cross-examination about whether or not he was licensed to do this work which in my view carries the matter nowhere. The fact is that he did the work.

9 In 1985 the plaintiff did some work with a friend on a set of wooden stairs at the rear entrance. He said that Mr Ridley said to him, "The work you are doing is improving your property". He said he did not charge for doing this work. The following year in 1986 he replaced the guttering for the deceased which took two days. While he was doing the work the deceased said to him "the house would be yours".

10 He did some other work during 1986 and in 1987, after a heavy rain storm and some flooding in the house, he and a helper dug out the subfloor area and installed agricultural pipes, during which time the deceased again said something along the lines that the work which was being done was improving "your property". There was probably some other work done after that time, but most of the work which was done by the plaintiff for the deceased was done in the three years between 1984 and 1987.

11 In paragraph 21 of his affidavit the plaintiff says that he did the work and took time off from his business to drive the deceased around, "… because I believed Duncan would leave me the property as he said he would. I would not have done so if he had not said anything".

12 He also said that the work which was done at Batehaven was on a much larger scale than work done on the farm in Victoria, although from the oral evidence that is not really clear.

13 In 2000, by which time the plaintiff had moved from Batemans Bay, but on visiting the deceased at Batehaven, the plaintiff was told by the deceased that he had decided to leave everything to the church and Salvation Army to which the plaintiff said, "that's a bit rough after all these years and the work I've done on this place. I thought we had an agreement that you would leave it to me", to which the deceased said, "we did but I've changed my mind.”

14 There are two other wills also in evidence. The first was made on 1 August 1990. Under that will the deceased gave his shotgun and three rifles to the plaintiff and he gave to the plaintiff and the plaintiff's wife, the deceased's niece, the property at 15 Grantham Road, Batehaven, together with its contents. That will was, of course, made after the statements which I have set out, most of which were made between 1984 and 1987.

15 The deceased made another will on 16 December 1992 which once again gave the shotgun and three rifles to the plaintiff and gave a legacy of $5,000 to the plaintiff and his wife but under which the main beneficiary was the Royal Flying Doctor Service of Australia (NSW Section).

16 As I have said, the evidence of the plaintiff of the statements made to him by the deceased was not challenged or in any way tested and I accept that those statements were made.

17 This is a claim based on proprietary estoppel. It is not a claim based on an agreement or a promise. It is a claim based on representations. As is pointed out in Sullivan v Sullivan [2006] NSWCA 312 at par 85, for such a claim to succeed there must be a representation which is sufficiently certain to support an estoppel; in this case this means it must have been reasonable for the plaintiff to believe the representation to be genuine and to act in reliance upon it, putting himself at risk of detriment if the deceased departed from the representation.

18 While the law has moved on a little, the basis for establishing a proprietary estoppel is set out in the judgment of Brennan J in Waltons Stores Interstate Limited v Maher (1988) 164 CLR 387 at page 428, the first requirement being that the plaintiff must prove that he assumed a particular legal relationship existed and that the plaintiff and the defendant, or in this case the plaintiff and the deceased, expected that a particular legal relationship would exist and that the deceased would not be free to withdraw from the expected legal relationship.

19 Thus, it would be necessary to show that the plaintiff and the deceased proceeded on the assumption that the representation which had been made would remain in force and that the deceased could not withdraw from it. In fact, the plaintiff did not work on that assumption and when he was told that the deceased had withdrawn from it, apart from saying that he thought that it was a bit rough after the work he had done, he did not suggest that it was wrong for the deceased to do what he had done.

20 The real problem for the plaintiff in this case is that in my view he has not established that the deceased induced him to act or to adopt a particular assumption as a result of the statements which were made, nor that he acted in reliance upon them. Although in his affidavit he said that he would not have done what he did if the statements had not been made, in cross-examination he resiled from that and he said that he would have done what he did in any event. In those circumstances I do not think it has been established that the plaintiff helped the deceased with the work which he did around the house in reliance upon or as a result of the statements which had been made to him. He regarded them as friendly, nice statements which he hoped would come to fruition. He did not rely upon their coming to fruition to do the work which he did.

21 Further, apart from the fact that he lost some days off work and that he spent some money in doing the work which he did for the deceased, the plaintiff has not established that he has suffered detriment in doing what he did. He did not change his position. He did not give up any job. He did not change his place of residence. There was nothing that he did, apart from losing some time off work and expending a certain but relatively small amount of money on the repairs, which was in any way detrimental to him. Although counsel argued other otherwise, those few days off work and other benefits provided to the deceased 20 years before his death would not justify a finding of a proprietary estoppel excluding any right to withdraw from the stated situation.

22 If the relatively small time spent and relatively small amount of money spent were regarded as detriment, in my view it would be not proper or conscientious for the Court to declare a trust on the basis of that relatively small detriment and certainly not the trust sought by the plaintiff.

23 I suggested at the start that the parties should try to compromise this case, as it is a family matter, and it is unfortunate that it has had to come to Court. Nevertheless, in my view it is clear the plaintiff's claim must fail and, therefore, the Statement of Claim should be dismissed and there should be judgment for the defendant on the plaintiff's claim.

24 I order the plaintiff to pay the defendants costs.

25 I order that any inquiry as to damages on the undertaking be referred to an Associate Judge to determine.

26 I just note that the defendant intends to claim damages incurred as a result of the continued operation of the caveat orders upon the undertaking as to damages given by the plaintiff on 22 February 2007. I direct that the matter be referred to an Associate Judge to inquire into and determine such damages and to give any judgment accordingly.

27 Liberty to apply on seven days notice.

28 I order that caveat AC828898 be withdrawn by the plaintiff within seven days.

29 Exhibits may be returned.

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