FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann (No 10) [2023] FedCFamC1F 623
File number(s): SYC 6037 of 2021 Judgment of: TREE J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – PROPERTY – Preliminary issue – Where the husband sought equitable relief against the wife’s parents in relation to a property owned by them – Where the husband principally sought a declaration that the wife’s parents hold the property on trust for the husband and wife and a transfer of the property to them – Where the husband sought alternative claims for an equitable charge or equitable compensation – Whether the husband may litigate a claim for equitable relief on the wife’s behalf – Where the husband relies upon a number of alleged representations made by the parents that the property would be transferred to the husband and wife – Where the parties’ and their witnesses’ evidence was approached with circumspection given the length of time between the events and the trial – Where there was little contemporaneous evidence of the alleged representations – Where contemporaneous records or events themselves were afforded greater weight than mere purported recollection – Where the Court is not satisfied any of the representations were made in the terms, or having the purport, asserted by the husband – Where the husband’s claim fails at the first hurdle – Where the balance of the husband’s claim is resolved in any event – Inducement – Where there is staggering disproportionality between the claimed detriment and the asserted entitlement to the property – Where the husband’s claim against the parents fails and is dismissed. Legislation: Family Law Act 1975 (Cth) s 78 Cases cited: Blacket v Barnett [2017] NSWSC 1032
Camden Pty Ltd & Laue (2018) FLC 93-840; [2018] FamCAFC 91
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Warby and Warby (2002) FLC 93-091; [2001] FamCA 1469
Division: Division 1 First Instance Number of paragraphs: 157 Date of hearing: 13–17 & 23–24 March 2023 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Barkus Doolan Winning Counsel for the First Respondent: Mr Williams SC with Mr Stapleton Solicitor for the First Respondent: Watts McCray Counsel for the Second and Third Respondents: Mr Moses SC with Ms Petrie Solicitor for the Second and Third Respondents: Pigdon Norgate Family Lawyers ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILLMANN
Applicant
AND: MR WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS THAT:
1.The first respondent’s claim against the second and third respondents is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Ms Willmann commenced property settlement proceedings against Mr Willmann by Initiating Application filed on 19 August 2021. By his Response to Initiating Application filed on 18 October 2021, Mr Willmann also sought orders for property settlement, but in addition sought relief against Ms Willmann’s parents, Mr Andrews and Ms Andrews who subsequently became the second and third respondents in the proceedings (collectively “the parents”).
The orders which Mr Willmann seeks against the parents are based upon equitable claims, and principally seek a declaration that they hold a rural property at C Street, B Town NSW (“D Property”) on trust for Mr Willmann and Ms Willmann as tenants in common in equal shares, with a consequential transfer of D Property to them. In the alternative, he seeks a declaration that D Property is subject to an equitable charge in favour of himself and Ms Willmann for such amount as the Court deems just and equitable. In the further alternative, Mr Willmann seeks equitable compensation against the parents in an unspecified sum.
The parents, and Ms Willmann herself, oppose Mr Willmann’s claim for equitable relief and seek that his application against the parents be dismissed.
Mr Willmann’s claim against the parents was listed as a separate issues trial before me, and concluded on 24 March 2023, when I reserved my decision. This is that decision and the reasons for it.
BACKGROUND
The family
Mr Andrews was born in 1951 and is 71 years of age. Ms Andrews was born in 1953 and is 70 years of age. There are four children to their marriage, being Mr AE born in 1979, Ms Willmann born in 1981, Mr AF born in 1989 and Mr AG born in 1990. It is convenient to collectively refer to the parents and their four children as “the Andrews”. All of the Andrews were called as witnesses in the parents’ case before me.
Ms Willmann is currently 42 years of age. Mr Willmann was born in 1979 and is 44 years of age. Mr Willmann was a school friend of Mr AE. On Mr Willmann’s case, he and Ms Willmann commenced cohabitation in 2003, and whilst Ms Willmann claims it was 2005, nothing turns on that in this respect of these proceedings. They subsequently married in 2008 and separated on 1 January 2018. An order for their divorce was made in 2022.
Mr Willmann and Ms Willmann have two children together, namely, X born in 2009, and Y born in 2012, who live with their parents in an equal time arrangement.
Both Mr Willmann and Ms Willmann have each re-partnered.
D Property
In 1983, the parents purchased D Property, which originally comprised over 600 acres. Since then, they have added and sold a number of parcels of land to and from the property, and thus its constituent titles and boundaries have varied over time, although it has nonetheless been regarded as one continuing property, albeit variously constituted. It currently comprises three titles, namely:
(a)Dwelling 1, D Property in DP …90 (approximately 110 hectares);
(b)Unit 1 M Street in DP …19 (approximately 120 hectares); and
(c)Unit 2 M Street in DP …41 (approximately 10 hectares).
The parents have operated, and continue to conduct businesses on D Property. The property and the businesses require considerable management and maintenance, and at all relevant times the parents have utilised employees to assist in those regards. These have included full-time staff, some of whom lived on site, as well as part-time and casual staff. A number of those staff members were called as witnesses in the parents’ case including Mr AH (general manager of the property), Ms AJ (manager from 2012 to 2014), Mr AK (manager from 2017 to 2018) and Mr AL (employee from 2010 to 2011).
There are a number of dwellings located on D Property, presently comprising the following:
(a)The main home which was built by the parents in 1985 (“the main home”). It was extended in 1987, 1989 and 1990. Ms Willmann presently resides there with at least her and Mr Willmann’s children, and seemingly also her partner;
(b)A brick dwelling which was built in 1987/1988 and extended in 2003/2004. The parents had previously lived in the dwelling at various times. Mr AF, his wife and their three children currently live in the dwelling;
(c)The dwelling and outdoor facilities located close to the main home. This is where the parents nowadays reside when they stay at D Property;
(d)A studio building which was converted from an old building, which is where Mr AG, his wife and their children currently reside;
(e)Three portable structures which were purchased and relocated to D Property. Two portable structures are currently used by staff members of the property and the third is rented to an external tenant;
(f)A timber dwelling, which has been occupied by long term employees of the property, Mr AH and Ms AM and their two daughters;
(g)A second timber dwelling which is presently rented to a tenant.
Relevant chronology
The Andrews lived in the main home from 1985 until 2001. At this time, they purchased a unit at Suburb AN (“the parents’ Suburb AN unit”). By 2003, the parents, Mr AF and Mr AG, were all living in the parents’ Suburb AN unit so the boys could attend high school, but they visited D Property most weekends. Mr AE and Ms Willmann had moved out of home by this stage.
In 2004, Mr Willmann ceased external employment and commenced working full time at the parents’ business, E Company, as a manager. At the time, his annual salary was approximately $50,000 per annum. Ms Willmann also worked for E Company and her annual salary was $45,000 per annum. Mr Willmann continued to work full time at E Company until mid-2020.
E Company is a retail business and operates through a number of companies, collectively known as the E Group, which includes importing operations. As at 2002, the parents owned 100 per cent of the E Group. Mr Andrews is currently semi-retired but continues to be involved in the operation of the E Group. Mr AE, Ms Willmann, Mr AF and Mr AG are all currently employed by E Company in various roles.
In 2005, Mr Willmann and Ms Willmann purchased a unit at Suburb F NSW (“the Suburb F property”) for $641,000 funded by their savings and a mortgage. Ms Willmann says she contributed $152,000 and Mr Willmann contributed $10,000 to the purchase. They lived in the Suburb F property until 2009, after which they moved into a unit at Suburb AN owned by Ms Willmann’s paternal grandmother (“the grandmother’s unit”) which was in the same unit complex as the parents’ Suburb AN unit. They lived in this unit until mid-2011. Mr Willmann and Ms Willmann rented out the Suburb F property from 2009 until it was sold in 2018.
Also in 2005, a roster system was introduced whereby the adult Andrews and Mr Willmann were required to contribute a number of weekends per year to work on D Property. The purpose of the roster was to give the full-time staff time off on weekends.
In 2008, the parents rented out the main home for about $680 per week. At that time, they also decided to rent out their Suburb AN unit and moved into a property they owned at Suburb AO (“the Suburb AO property”). The parents’ Suburb AN unit was leased from 2008 to 2014.
In mid to late 2011, Mr Willmann and Ms Willmann moved into the main home on D Property and lived there with their two children until their separation, when Mr Willmann moved out on 1 January 2018. While they were living there, they paid no rent or outgoings, and had their utility costs met, however they assisted with the management and operation of the property, including the business, and overseeing the staff.
It is in dispute between the parties as to why Mr Willmann and Ms Willmann moved onto D Property. On the parents’ and Ms Willmann’s case, it was because Mr Willmann and Ms Willmann had suggested the idea, claiming it would be mutually beneficial in that they could help manage the property in exchange for rent-free accommodation so they could accumulate savings. On Mr Willmann’s case, it was because of representations made by the parents to him and Ms Willmann that the property would be transferred to them. The details of these alleged representations will be outlined and considered later in these reasons.
It was not in dispute that while Mr Willmann and Ms Willmann were living at D Property:
(a)Mr Willmann mowed, weeded and watered the lawns of the main home, and attended to other maintenance and repairs on the property;
(b)From about 2013, Ms Willmann took over some of Ms Andrews’ role in one of the businesses, including managing the full-time staff;
(c)Mr Willmann assisted with payment of staff wages;
(d)Mr Willmann and Ms Willmann jointly maintained the property’s “diaries”;
(e)Mr Willmann and Ms Willmann undertook business tasks on weekends, public holidays and outside of normal business hours when the staff were unavailable. They also undertook any urgent repairs required to the property;
(f)Mr Willmann had involvement in the day to day operation of one of the businesses including researching market value of property, being involved in the purchase and sale of some property, arranging purchases generally and assisting staff with physical tasks relating to the business.
However, Mr Willmann’s evidence was that he attended to many more tasks in relation to the management of the property, the businesses and improvements on the property. These additional tasks are mostly controversial, and I shall address them later.
In 2012, Mr Willmann and Ms Willmann, together with the three Andrews brothers, jointly purchased a property (“the AP Property”) from the parents for $702,000. The AP Property contained three dwellings which were tenanted. The property was sold in 2017 for over $1,400,000 and the net sale proceeds were equally divided four ways between Mr Willmann and Ms Willmann (jointly) and the three brothers (severally).
Between 2012 and 2015, Mr Willmann and Ms Willmann undertook renovations to the main home with the approval of the parents, who contributed about $80,000 towards the cost. It seems that Mr Willmann and Ms Willmann contributed $10,000 to improvements which either the parents did not think were necessary, or at least exceeded their budget for the renovations.
In about 2013, Ms Willmann established a business which she subsequently conducted from the studio building on the property, which in 2014 was converted into an office space for her business.
Between 2013 and 2015, Mr Willmann and Ms Willmann employed au pairs for their children who resided in a dwelling on D Property.
Between 2013 and 2016, the parents sold over 200 acres of land then forming part of D Property for approximately $6 million which was used to repay borrowings. At the time, some of the business operations on the property were being scaled down.
In 2014, as part of their retirement plan, the parents gifted 63 per cent of their shares in the E Group as follows:
(a)5 per cent to the managing director of E Company;
(b)14 per cent to each of their children; and
(c)2 per cent to Mr Willmann.
In about 2015, Mr Willmann and Ms Willmann had discussions with the parents about taking over one of the businesses on the property, and carried out forecasts of its income and expenses. However because they discovered that the business had a low profit margin, they did not ultimately proceed with their plan to take it over.
Throughout their relationship, the parents contributed to a number of expenses and holidays for Mr Willmann and Ms Willmann such as payment for their wedding, a school registration fee for X, and the cost of holidays to Country AQ.
After separation, Mr Willmann moved from D Property to a property owned by the parents at Suburb AR. He lived in this property rent free until about September 2018. Ms Willmann, and her and Mr Willmann’s children, remain living in the main home. Although she denied it, it seems that Ms Willmann’s new partner also lives with her there when he is not elsewhere. Mr Willmann lives with his new partner.
In early 2018, the Suburb F property was sold for over $1,400,000 and the net sale proceeds were placed into Mr Willmann and Ms Willmann’s joint bank account.
On 19 August 2021, Ms Willmann commenced property settlement proceedings against Mr Willmann, which in due course precipitated Mr Willmann’s claim against the parents.
MR WILLMANN’S CLAIM
As pleaded in his Amended Points of Claim filed 6 March 2023, the relief which Mr Willmann claims is founded upon a number of alleged representations made by the parents to himself and Ms Willmann, which he argues comprised promises to transfer D Property to them. His evidence did not perfectly align with those pleadings, including that he alleged further promises beyond those pleaded.
Mr Willmann’s case is that he and Ms Willmann acted to their detriment in reliance on those promises, which were “unconscionably brought to an end when [Mr Willmann] and [Ms Willmann] separated” (Amended Points of Claim filed 6 March 2023, paragraph 22) such that it is unconscionable for the parents “to now assert ownership” of D Property (paragraph 24). I have recited the cascading, consequential relief he seeks, earlier in these reasons.
CREDIBILITY AND PROOF
The parties in large part conducted their cases by impugning the honesty of their opponents and their witnesses. However it does not seem to me that this case falls to be determined by the rejection of evidence on such grounds. Particularly, the contended conversations which Mr Willmann relies upon – and which in large part are denied by the relevant Andrews – are said to have occurred many years ago, without any contemporaneous, or even subsequent, recording of them, and indeed remarkably few, if any, contemporaneous references to them.
That, of course, means that all witnesses were reliant upon their memory as to what occurred so long ago. Although in a different legal context, in Ryan v Zekas [2020] WASC 124 (in large part by reference to Blacket v Barnett [2017] NSWSC 1032) at [38]–[41] Hill J helpfully summarised a sensible approach in such cases, relevantly as follows:
38.In this case, the evidence from the witnesses concerned events that occurred over a period of more than 20 years. Recent authorities have discussed the approach that should be taken by the court in these circumstances. In considering the evidence in this case, I have applied the following principles:
…
(b)The need for careful scrutiny may be greater where the person giving evidence of the conversations has a self‑interest in the outcome of the proceedings.
…
(d)There is a significant risk that conversations have been reconstructed by witnesses. There are dangers in relying on evidence of what may have been a casual observation made to a person who had no reason to remember the exact words used at the time of the conversation. For this reason, a substantial evidentiary burden is on a party whose case relies upon such evidence.
(e)The court must recognise that human memory of what was said in a conversation is fallible for a variety of reasons. Ordinarily, this will increase over time, particularly where disputes or litigation intervene. This is because the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.
(f)The credibility of a witness and their veracity may also be tested by reference to the objective facts proved independently, in particular by reference to the documents in the case. It is preferable to rely on contemporaneous documents in cases which involve events which occurred long before the litigation. Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material, the inherent commercial probabilities and the contemporaneous documents. Documents will often provide more valuable information than the attempted recollection of the facts by witnesses with an interest in the outcome of the litigation. This is particularly the case when the documents are accepted as genuine and were prepared by a person who had no reason to misstate the facts in these documents.
(g)Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements. This is because false memories can intrude, especially when the person recalling events has tried to assemble recollections logically. In doing so, the person can attempt to have some rational explanation in the person's mind as to what has happened. It is important to keep in mind that memories are both fluid and malleable and are constantly rewritten whenever they are retrieved.
(h)The court must be alive to the reality that words that are spoken are capable of bearing different and potentially opposed meanings depending on the nuance and emphasis that is given to particular words. A person's appreciation of the significance of these matters must necessarily be considerably diminished if there is a significant delay between the date when the conversation took place and the hearing at which the evidence of that conversation is given.
(i) The court must recognise that:
Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.
…
40.Much of the defendants' evidence came from the defendants or their family members. In this regard, most of the witnesses have a self-interest in the proceedings in advancing their own claim or preserving their entitlements or the entitlements of those they are associated with under the Will.
41.Finally, the court must also keep in mind the bitterness between parties that disputes over deceased estates generate. This was clearly the case in this matter.
(Footnotes omitted)
Indeed an excellent example of the problems of recall of long past events occurred in Ms Willmann’s cross-examination, as follows:
[COUNSEL FOR MR WILLMANN:] Don’t you perceive that the conversation that you have recounted is important in the context of these proceedings?
[MS WILLMANN:] Yes, but I – this is something that I can remember in the last week. This isn’t something that I remembered back then. This has come – like I can picture it in my head now. These are the things you lie in bed thinking about.
[COUNSEL FOR MR WILLMANN:] This is a flash of memory that has occurred to you in the last week that you couldn’t recall at the time of your affidavit; is that what you say?
[MS WILLMANN:] Yes.
[COUNSEL FOR MR WILLMANN:] You’re not telling the truth, are you?
[MS WILLMANN:] I am.
[COUNSEL FOR MR WILLMANN:] You’re making things up?
[MS WILLMANN:] I’m not. I can picture it in my head.
(Transcript 16 March 2023, p.474 lines 23–34)
I formed the impression that in giving that evidence, Ms Willmann was indeed being honest, however I do not treat that evidence as reliable, it only having recently been “remembered” by her, but not previously.
I am not persuaded that in the trial before me, any witness was knowingly giving untruthful evidence. However all of the main witnesses had occasion to view past events through the distorting lens of later occurrences. Thus Mr Willmann likely views the evidence underpinning his claim through a prism affected by the breakdown of his relationship not merely with Ms Willmann, but also with the Andrews generally. The extent to which he was emotionally affected by that breakdown is graphically underscored by the fact that not long after separation, he assaulted Ms Willmann’s new partner in a public place. Under cross-examination, he described the new partner as “[Mr Andrews’] friend” (Transcript 13 March 2023, p.122 line 37) which he was obviously bitter about. His emotional investment is likely to see him view past events in ways favourable to, and justifying, him rather than the Andrews.
Likewise, I am satisfied that, as was put to them all in cross-examination, the Andrews were rather gobsmacked by Mr Willmann’s post-separation claim to one of their most substantial assets, D Property. That is likely to see them view past events in ways which would more emphatically exclude any aspects of Mr Willmann’s case than might otherwise have been the case.
Given those caveats, I approach the parties’ and their witnesses’ evidence with circumspection; rather I will be particularly vigilant to identify any contemporaneous records, or events themselves, which evidence shall likely be afforded greater weight than mere purported recollection.
However in some instances there is only recollection, which is unsupported by any record or event of any contemporaneity. In that case, given the caveats I have sounded above, my task is to consider whether that controversial evidence is nonetheless sufficient to discharge the onus of proof, in the determination of which questions of reliability will likely loom larger than credibility. In that regard, it is useful to bear in mind what was said by Emmett J (as his Honour then was) in Warner v Hung (No 2) (2011) 297 ALR 56 at [48]:
… When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342.
At this point I should specifically refer to a major plank of Mr Willmann’s argument impugning the credibility of the Andrews’, which was referred to as “the false narrative”. In broad terms it was said that the Andrews all falsely downplayed Mr Willmann’s titular and substantive role at D Property, so as to make it seem less likely that he was motivated in performing them by any promise of the transfer of D Property, and in any event, to erode his claims to detrimental reliance upon any such promise.
I did not form any such view of the Andrews. Rather, whilst I am satisfied that, on the whole, their evidence about Mr Willmann’s efforts was unreliable, that is likely because of the passage of time, and the fact that often no one was with Mr Willmann when he was working on D Property. On one occasion I formed the view that the downplaying may have been the product of animus (when Ms Willmann asserted in cross-examination that “[i]t was trivial, the work he did” (Transcript 16 March 2023, p.492 line 46)) but that falls far short of warranting wholesale rejection of her evidence about relevant events as untruthful, much less all of the Andrews’ evidence.
In a similar vein, the parents enthusiastically pressed a line of argument said to impugn Mr Willmann’s credit, arising from apparently inadequate disclosure of documents by him. This was undertaken by a vigorous pursuit of documents previously provided by Mr Willmann to his litigation funder. It rapidly became clear that indeed he had provided them with documents which he ought also have disclosed to Ms Willmann and the parents. However by and large, it proved to be a damp squib or, to employ another explosive metaphor, produced no smoking gun, as no document was provided by the litigation funder which harmed Mr Willmann’s case, indeed, it was probably faintly the opposite. I am not persuaded that the lack of proper disclosure by Mr Willmann on the facts of this case, impacts his credibility in any adverse way.
MR WILLMANN’S CLAIM GENERALLY
Mr Willmann says that, from 2008 he worked on D Property, and from 2011 worked even more, and lived on D Property, in reliance on a promise by the parents not to sell D Property, and to transfer it to himself and Ms Willmann.
At no time in that period did he stop working full time at E Company, nor did his workload or salary there diminish. More, in addition to a small wage paid to him by the parents in relation to his work on D Property (so to ensure he had worker’s compensation coverage for that work), he and Ms Willmann lived in the main home rent free, with utilities paid for, for a little less than seven years. However for all of that time, both full-time and part-time employees did much of the work on D Property at the parents’ expense, and no one else’s.
Moreover, there is not one single document of any kind authored prior to separation which supports the claimed promise to transfer D Property to Mr Willmann and Ms Willmann. Indeed, such slender contemporaneous documentation and conduct as there is, seems quite inconsistent with beneficial ownership remaining with anyone other than the parents. Thus for instance, as I have noted earlier, between 2013 and 1016, the parents sold over $6 million worth of land which had formed part of D Property without, on the documentary evidence, seeking permission from Mr Willmann and Ms Willmann, nor in the face of any evidence of protest. Whilst in cross-examination Mr Willmann suggested his “permission” was in fact sought (Transcript 13 March 2023, p.61 line 43 to p.62 line 32), I reject that evidence. Not only was that suggestion not previously stated in any of his affidavits, but it was not thereafter put to Mr Andrews (or Ms Willmann, who Mr Willmann claimed was present at the time) in cross‑examination.
That is very curious, as if permission was sought, it was strong evidence of the agreement Mr Willmann contends, and presumably would have been a centrepiece for his case, but it was not. In the event I think that was a good example of the unreliability of Mr Willmann’s recollection, to the point of probably being an improvisation.
These are not all the problems in Mr Willmann’s case. For instance, Mr Willmann says that he and Ms Willmann became entitled to the beneficial interest in D Property, but seems squeamish about specifying when that interest vested. He eschews it having arrived on the occasion he first acted to his alleged detriment in reliance on the promise/s, but does not claim a specific date of vesting, save that he pleads it became unconscionable to deny it at the time he and Ms Willmann separated. One asks, why would separation accelerate vesting? And if it did not, what factual trigger would otherwise have seen it vest?
Then there is the staggering disproportionality between the claimed detriment and the asserted entitlement – D Property being now valued at $22 million. Apart from a relatively minute $10,000 contribution to the renovation costs of the main home, the immediate (I acknowledge others are claimed too) detriment was entirely labour related, but no one could possibly contend it had a commercial value of anywhere near $22 million. True it is Mr Willmann says he and Ms Willmann also did not pursue other investment possibilities, although not only is that claim rather amorphous, but in any event he and Ms Willmann did have investments in property.
Of course, the elephant in the room is that for the seven years they lived on D Property, Mr Willmann and Ms Willmann enjoyed rent-free accommodation in a very pleasant home and environment, with utilities paid for, and enjoying activities which were very much to Mr Willmann’s tastes, all while he was earning a salary from full-time employment with E Company, of which Ms Willmann was a director. Their lifestyle on D Property was no great sacrifice. As Mr AE said in re-examination about the “trappings” enjoyed by Mr Willmann at D Property:
[COUNSEL FOR THE PARENTS:] What trappings were you referring to?
[MR AE:] The access to a beautiful thousand acre property, to have friends over, access to [facilities], somewhere for an au pair that they were using to live, [vehicles and equipment]. It’s a beautiful place.
(Transcript 16 March 2023, p.521 lines 44–47)
CAN MR WILLMANN LITIGATE MS WILLMANN’S CLAIM?
During the course of the trial, I raised with the parties whether or not Mr Willmann had standing to, or could otherwise, litigate a claim for equitable relief on Ms Willmann’s behalf. In that context, I referred the parties to the transcript of the hearing in the High Court of Australia of an application for special leave on 13 April 2022 in an unrelated matter. One of the special leave questions there contended was the standing of one spouse to claim a beneficial interest in property on behalf of the other, in the context of property settlement proceedings.
On one view, the transcript supports the contention that the declarations power in s 78 of the Family Law Act 1975 (Cth) (“the Act”) is a sufficient statutory warrant for Mr Willmann to bring such a claim, even if he may not otherwise have been so entitled, particularly given the repeal of the previous s 78(3) of the Act in 1988 which had expressly limited the declaration only to the parties to the marriage (Warby and Warby (2002) FLC 93-091; see also Valceski v Valceski (2007) 70 NSWLR 36 at [30] per Brereton J and Camden Pty Ltd & Laue (2018) FLC 93-840). I am therefore content to proceed on the basis that, at least in this Court, Mr Willmann may litigate to vindicate a right of Ms Willmann.
However that does not mean that doing so is a straight forward matter, as even accepting that he has standing to litigate her claim, in the face of her disavowal of it, there are glaring evidentiary difficulties in doing so.
First and foremost is that Ms Willmann does not contend any of the representations were made to her. I would need to not only accept Mr Willmann’s evidence of the representations, but find that Ms Willmann was present and heard them. Of course a major problem is that, as shall be seen, even on Mr Willmann’s case, she was not present for the fourth and fifth representations.
Secondly, and equally significant, is that Ms Willmann denies she was induced by any representation to act to her detriment, these being matters exclusively within her knowledge. Perhaps that could be cured, in the right case, by inference, but here she gives evidence that her (and Mr Willmann’s) move to D Property was to enable them to live in a rural location, rent free in a very pleasant house they could not otherwise afford, and hence enable them to save money. I would need to positively reject that evidence in order for any inference to even be capable of arising, and yet there is little reason, as regards Ms Willmann (other than loyalty to her parents), to do so.
Finally, in the face of the parents’ emphatic rejection of Ms Willmann having any equitable interest in D Property, Ms Willmann has agreed with them. How that is not the most explicit example of acquiescence is difficult to conceive. And yet, on some basis which I confess remains opaque, Mr Willmann says he can nonetheless vindicate a claim she expressly disavows.
All of this combines to make Mr Willmann’s advancement of Ms Willmann’s claim a most difficult task. That said, the parties did not argue the case in a way which separated out Ms Willmann’s claim from Mr Willmann’s. However the way in which Mr Willmann’s case was run – as if his and Ms Willmann’s claims were entirely overlapping – presents significant impediments to his successful prosecution of a case on behalf of Ms Willmann.
THE ALLEGED REPRESENTATIONS
Overview
Ultimately Mr Willmann relied upon five representations as detailed in his affidavit filed 23 November 2022 (“Mr Willmann’s trial affidavit” or similar). Strictly speaking, the first did not, on any view, contain an express or implied promise to transfer D Property to Mr Willmann and Ms Willmann, but rather it was more in the nature of background to later contended promises. Even so, it was disputed, or at least the terms of it were controversial.
It should also be noted that although all relevant witnesses were cross-examined extensively about the representations, none resiled from their evidence in chief in any substantial way in respect of any of them.
First representation
This representation was pleaded in Mr Willmann’s Amended Points of Claim as follows:
14.In 2009, [Mr Andrews] had a conversation with his three (3) sons, [Mr AE], [Mr AF], [Mr AG], [Mr Willmann] and [Ms Andrews] and [Ms Willmann], wherein words to the following effect were stated:
A.[Mr Andrews] said that only [Ms Willmann] and [Mr Willmann] want to run the [property];
B.[Mr Andrews] said that the [property] cannot run itself;
C.[Mr Andrews] also said that “if nobody wants to run the [property] then I will have to sell it”;
D.[Mr Willmann] offered to work the [property], and thereby prevent a sale of the [property].
The parents’ defence denied this.
At paragraphs 85 to 87 of Mr Willmann’s trial affidavit, he deposed:
85.In or around 2008 (it was before [X] was born, which occurred in […] 2009), [Ms Willmann] and I were at the [parents’ [Suburb AN] unit] for a Sunday dinner with [Mr Andrews] and [Ms Andrews] along with [Mr AE], [Mr AF] and [Mr AG]. At the end of dinner, a conversation took place regarding the [property] and […] work rosters, during which, the following, in words to the effect of, was stated:
[Ms Andrews]: “If no one wants to do the work on the [property] should we get rid of it?”.
[Mr Andrews]: “Nobody wants to do any of the work on the [property] except for [Mr Willmann] and [Ms Willmann] and it doesn’t run itself. We’re getting older and we don’t want to run it. We don’t want to live out there and it is up to you to step up if you want to run it”.
I said:“No. I don’t want you to sell the [property]. I’m happy doing the work to not sell the [property]. I’m happy to run it”.
[Mr Andrews]: “Well if we can make it work then we’ll keep it”.
86.At the time the conversation took place, I was sitting at the dining table. [Ms Willmann] was to my left at the table. [Mr Andrews] was at the head of the table. [Ms Andrews] was at the other end of the table, facing [Mr Andrews]. [Mr AE] was opposite me at the table. [Mr AF] and [Mr AG] had left the table but were sitting on a nearby couch.
87.To the best of my recollection, [Ms Andrews] stated during the course of the above conversation (although possibly in another conversation around this time), in relation to the topic of selling the [property], words to the effect of: “If none of you want to work the [property], we can sell it and you can all have a million dollars”. I understood the reference to “all”, being a reference to each of [Mr AE], [Ms Willmann] and I (i.e. $1 million to us collectively as a couple), [Mr AF] and [Mr AG].
Ms Willmann’s recollection is different. At paragraph 94 of her affidavit filed 9 December 2022 (“Ms Willmann’s trial affidavit” or similar), she deposed:
94.Throughout our relationship, I deny that I was a party to or privy to any of the conversations [Mr Willmann] alleges took place and say as follows:
…
94.2.Either of my parents never indicated that if myself or my siblings did not start contributing to the maintenance of the [property], it would be sold. I do recall a conversation whereby we discussed the work roster in the context of each of the children having to make sure that we covered some weekends so that the […] staff could have time off from time to time. I also recall my parents telling their children that the main house, together with other investment properties, were going to be tenanted as a result of their financial position during the global financial crisis. However, there was never any suggestion that the property [D Property] was going to be sold, or that any of us were required to move there so that it would not be sold.
94.3.My parents did not require any of their children to run the [property]. The [property] has always employed full time and part time staff to run the [property] on a day to day basis. I deny that [Mr Willmann] ever offered to work on the [property] to prevent it from being sold. We moved to the property as a lifestyle decision having regard to the location of [Mr Willmann’s] employment at that time, the ages of our young children and that we could accumulate savings while living for free on [D Property] while I reduced my work commitments to care for our young children. We also moved there for a better family lifestyle.
94.4.My mother or father never indicated that if they sold the [property], myself and my siblings would receive $1,000,000 each.
Mr Andrews’ evidence relevant to this conversation is at paragraphs 140.7 and 140.8 of his affidavit filed 9 December 2022 (“Mr Andrews’ trial affidavit” or similar) as follows:
140.7.As to paragraph 85, I deny that any conversations took place at the [Suburb AN] Property in late 2008 or early 2009. The property was vacated by [Ms Andrews] and I on 24 to 26 December 2008, and rented out in 2009. I deny any discussion or proposal was made to sell [D Property];
140.8.As to paragraph 87, I deny during the course of any conversation in late 2008 or 2009 at the [Suburb AN] property I heard [Ms Andrews] propose the sale of the property and the distribution of $1,000,000 to each of our children.
To like effect in Ms Andrews’ affidavit filed 9 December 2022 (“Ms Andrews’ trial affidavit” or similar) she said:
12.I have read [Mr Willmann’s] affidavit sworn on 23 November 2022 and filed on 23 November 2022 and in relation to paragraphs 83 to 89 say as follows:
…
12.2.Either of [Mr Andrews] or I indicated to [Ms Willmann], [Mr Willmann], [Mr AF], [Mr AE] or [Mr AG] that if they did not start contributing to the maintenance of the [D Property], it needed to be sold. I do recall a conversation whereby we discussed the work roster in the context of each of the children having to make sure that we covered some weekends so that the [property] staff could have time off from time to time;
12.3.I also recall telling the children that the main house, together with other investment properties, were going to be tenanted as a result of our financial position during the global financial crisis. There was never any suggestion that any of the properties would be sold, including [D Property];
12.4.I deny that [Mr Willmann] ever offered to work on the [property] to prevent it from being sold;
12.5.I deny any conversation where I advised the children that if the [property] was sold the children would receive $1,000,000 each;
Generally speaking, the Andrews boys denied all of Mr Willmann’s claims.
There is no contemporaneous documentary evidence to support Mr Willmann’s version, nor indeed is there any mention of the conversation in any document brought into existence prior to separation. However a little curiously, there was clearly later – in about 2014 – consideration of one aspect Mr Willmann says was discussed in about 2008, namely the sale of D Property and the distribution of $1 million to each of the children. It is contained in a handwritten document prepared by Mr Andrews headed “[D Property]” (“the 2014 memo”) which in part under a heading “?? Possibilities” included:
– sell [property] and lend kids say $1m each with NIL interest to buy a property.
(Affidavit of Mr Willmann filed 20 December 2022, Exhibit MW-9)
This is a significant document in the context of this trial, because it is reasonably contemporaneous to some relevant events and, contrary to the Andrews’ general evidence, clearly demonstrates the then prospect of the sale of D Property, something the parents were at pains to deny. It also contradicts the evidence of Ms Willmann and Ms Andrews referred to above, although there was no suggestion made to either in cross-examination that they had seen Mr Andrews’ document.
However, as I shall discuss later, although the part of the memo I have recited above in that sense supports Mr Willmann’s contentions, it is otherwise quite inconsistent with the promises he contends were made, as all of the proposals Mr Andrews raises in it are only consistent with he and Ms Andrews then having continued beneficial ownership of D Property.
Although I will consider the document in detail again later in these reasons, it plainly was not – on the evidence – met by any protest by Mr Willmann to the effect that Mr Andrews was resiling from any previous promise by floating the proposals that he did.
The state of the evidence does not permit any positive satisfaction as regards the contended first representation. I am not persuaded it occurred as Mr Willmann contends.
The second representation
This conversation was the primary pleaded promise in Mr Willmann’s Amended Points of Claim, which at paragraph 15 said:
15.In around 2010, [Mr Andrews] and [Ms Andrews] made a promise to [Ms Willmann] and [Mr Willmann], whilst they visited them at [the parents’ [Suburb AN] unit], to the following effect:
A.[Ms Willmann] and [Mr Willmann] would move to and live on the [property] and take over the business;
B.[Ms Willmann] and [Mr Willmann] would run the [property] like it is their own;
C.[Mr Andrews] would not transfer the [property] into their names now as they would not be able to afford the land tax;
D.The [property] “will be yours”.
The parents’ Points of Defence denied this assertion.
Mr Willmann’s evidence as to this, as contained in his trial affidavit, was as follows:
88.Subsequent to [the first representation], in or around late 2009 (possibly early 2010), I recall having another conversation with [Ms Willmann], [Mr Andrews] and [Ms Andrews] at [the parents’ [Suburb AN] unit]. On that occasion, a conversation took place which the following was stated in words to the effect of:
[Mr Andrews]: “Here’s how we’ll get the ball rolling. You guys can move out to the [property] and take over the business. We’ll see how it goes and then, eventually, you guys can have the [property]”.
Me:“OK. We are going to take over the business so how does the land work”.
[Mr Andrews]: “You guys wouldn’t even be able to afford the land tax, so we’ll keep it in our names for now… Run it like it’s yours. It will be yours one day anyway. So just do what you think needs to be done. And we’re always here to help”.
[Ms Andrews]: “It’s a great lifestyle out there with children. I’ll train [Ms Willmann] up on [the business]. I’ll keep doing MYOB for the moment because it’s complicated because [Mr Andrews] is always moving things around and I don’t even know where he shuffles things half the time. It’s a transition and eventually you and [Ms Willmann] will run it all”.
89.I recall during this conversation, [Mr Andrews] said on a number of occasions, words to the effect of: “The [property] will by yours”, in discussing [Ms Willmann] and I “moving out to the [property] and taking it over”.
In his oral evidence-in-chief, Mr Willmann moved the likely date of this conversation to late 2008 or early 2009 (Transcript 13 March 2023, p.50 lines 17–35). Also, when challenged in cross-examination by reference to the fact that land tax was not then payable on D Property, as it was used for primary production, Mr Willmann volunteered that it was “personal tax, stamp duties, all that stuff” (Transcript 13 March 2023, p.65 lines 8–12). This latter evidence very much had the appearance of improvisation under pressure.
Also in cross-examination Mr Willmann moved somewhat away from his affidavit evidence, in that he asserted that it was he who raised the transfer of D Property (Transcript 13 March 2023, p.55 line 22) saying “[h]ow does the land work?... how do we transfer that?... how does that happen?” to which Mr Andrews’ response was to the effect that “they were retaining the land because there was all sorts of personal tax implications for [Mr Andrews] and [Ms Andrews], which I couldn’t comment on” (Transcript 13 March 2023, p.55 lines 30–35). Notwithstanding that, Mr Willmann claimed it was his understanding that D Property would be his and Ms Willmann’s.
Mr Willmann’s movement as to the date, ultimately preferring late 2008, was because the parents did not live in the contended place of the conversation after then, hence seriously calling into question the reliability of Mr Willmann’s recollection, at least in this regard.
But moving the date so far back creates another difficulty for Mr Willmann’s case, in that on any view, it was not until mid to late 2011 that Mr Willmann and Ms Willmann in fact moved to live at D Property. It is difficult then to see that any “ball” got “rolling” in late 2008, or even 2009 or 2010. Indeed far from Mr Willmann and Ms Willmann moving to D Property at that time, in July 2009 they moved into the grandmother’s unit and remained there paying rent to Mr Andrews until early 2011, when they moved again, not to D Property, but rather into the Suburb AO property for about six months (Ms Willmann’s trial affidavit, paragraph 36). During all of this time, and from about mid-2008, the main home had been rented out to an unrelated tenant.
All of this rather begs the question, if this promise was made in 2008 in the contended terms, what happened in consequence of it? The answer must be not only was nothing done for about three years, but what was done in that time was quite inconsistent with the substance of any promise. Mr Willmann said in cross-examination that, in effect, things weren’t then right for he and Ms Willmann to move to D Property, because his workplace was too far away (which itself was disputed), which rather begs the question of why, if it were then impractical, it would be discussed at all in 2008 or 2009.
Moreover, in fact, Mr Willmann and Ms Willmann never did, even when living on D Property, “take over the business” in that it remained exclusively the financial responsibility of the parents. Indeed, although at one stage Mr Willmann and Ms Willmann did look at taking over one of the businesses, given its lack of profit, they decided not to.
Mr Andrews simply denied that any conversation in which the second representation was made ever occurred (Mr Andrews’ trial affidavit, paragraph 140.10). Ms Andrews said (Ms Andrews’ trial affidavit, paragraph 12.6-12.8):
12.6.I deny any conversation where [Ms Willmann] and [Mr Willmann] were advised that if they moved to the [property] and assisted with the management they would receive any benefit other than free accommodation and outgoings;
12.7.There was never any discussion about land tax associated with the property as there was never any suggestion that the property would be transferred. At the time [Mr Willmann] alleges the conversation took place in 2009 or 2010, no land tax was payable with respect to the [property];
12.8.I deny any conversation in which [Mr Andrews] or I advised [Mr Willmann] and [Ms Willmann] that they would eventually be solely responsible for the management of [D Property].
There are many matters which, both individually and collectively suggest that Mr Willmann’s recollection in relation to the second representation is flawed, including:
(a)his inconsistent assertions, and later movement, in relation to the date;
(b)the fact that thereafter for some years Mr Willmann and Ms Willmann did not move to D Property, but moved and lived elsewhere;
(c)the want of any immediacy between the representation and the eventual move to D Property;
(d)The apparent failure by anyone to mention what must have been a momentous promise for Mr Willmann and Ms Willmann (and all the Andrews for that matter) again until, at the earliest, on Mr Willmann’s case, 2011;
(e)the movement in Mr Willmann’s evidence away from land tax to personal tax/stamp duty.
Moreover, the parents’ later conduct prior to separation, and the lack of any protest thereto by Mr Willmann, is significant. Particularly as I have already noted, between 2013 and 2016, the parents sold titles which then formed part of D Property for over $6 million, which was used to reduce the debt secured over it. On Mr Willmann’s case, they were dealing with assets which had, presumably, formed part of that which by then he claims had been promised to him and Ms Willmann. I have already explained why I do not accept his evidence that his permission to that sale was ever sought or given.
Further, the parents’ wills never reflected any bequest of D Property to Mr Willmann and Ms Willmann, but rather to all their children, and it remained a significant asset enabling business borrowings.
There is also the terms of a rather curious email from Ms Willmann to Mr Willmann and the Andrews of 31 August 2010. It reads:
Hi Mum & Dad
We had a meeting today (4 of us – [Mr AG] wasn’t there) regarding taking over the management of the [property]. How we think this could work is:
Boys (headed up by [Mr AE])
•All [business] maintenance
•Customer accounts
•Billing
•Debt collection
•Banking
•Staff pays
[Mr Willmann] & [Ms Willmann] (mostly [Mr Willmann])
•Oversee stock ordering
•Manage [Mr AS] & [Ms AT]
•Work lists / maintenance of property & staffing
•Control of stock […]
[Mr Willmann] & [Mr AF]
•Develop new website
[Ms Willmann]
•Quarterly BAS
•Rosters
[Mr AF]
•Rental properties & dealing with agents (assisted by [Mr Willmann])
•Website maintenance
[Mr AG]
•Set up of equipment for [Mr AS] & [Ms AT] including PC, internet connection, printer, fax & email account so that we can communicate with them. This will most likely be in the office building unless they wish to help pay for it
No doubt we will have missed things but this is a start. What do you think?
What else do we need to think about?
What we plan to do is start with the jobs delegated like this and then meet monthly to keep on top of what is going on and re-delegate if anyone is not coping with their jobs.
[Mr Willmann] would like to be included in the [business] training and I will need training on how to do the BAS.
[Ms Willmann]
(Mr Willmann’s trial affidavit, Exhibit MW-18)
Mr Willmann seized on this document as indicative of a shared belief that the parents weren’t then coping with managing D Property, or at least that they wanted to step away from doing so, and indeed it does suggest that.
However of at least equal significance is that it seems quite inconsistent with Ms Willmann – and inferentially Mr Willmann, since he was one of the “4 of us” – believing that they had been promised D Property, particularly bearing in mind that Mr Willmann’s pleaded 2008/2009 representation was that “[Ms Willmann] and [Mr Willmann] would … take over the business”, and his trial affidavit recited above was to like effect.
It cannot be ignored that this email was sent around a year before Mr Willmann and Ms Willmann moved to live on D Property, in reliance, according to Mr Willmann, on the second and perhaps also the first representation.
Again, there is also the terms of the 2014 memo discussed earlier.
It is for Mr Willmann to persuade me that each of the representations occurred as a matter of fact, on the balance of probabilities. He has not done so as regards the second representation. I am not satisfied it occurred in the terms he claims.
The third representation
Relevantly, Mr Willmann’s Amended Points of Claim plead:
16.In or about 2012, [Mr Andrews] agreed with [Mr Willmann] and [Ms Willmann] that [Mr Andrews] would contribute a fixed sum for the cost of improvements to the main residence on the [property], and that any additional amount for the cost of improvements was to be met by [Mr Willmann] and [Ms Willmann].
Again, this is denied in the Points of Defence.
The first point to note is that no promise of transfer of D Property was pleaded by Mr Willmann. Nonetheless, his evidence-in-chief about the third representation at paragraph 93 of this trial affidavit, was as follows:
93.Prior to undertaking the extensive renovations to the Main Home (which is where [Ms Willmann] and I were living at the time), in or around mid-2011, [Mr Andrews], [Ms Willmann] and I had a conversation in words to the effect of:
[Ms Willmann]: “You know we want to do some renovations to the house”.
[Mr Andrews]: “What are you thinking of doing?”.
[Ms Willmann]: “We want to replace the kitchen, cut a hole in the wall and put a butler’s pantry in, replace the flooring and put in a new office, do the laundry”.
[Mr Andrews]: “We’d be happy to help. I’ll help you pay for it. But anything over and above what I give you, you guys have to pay for. The house is yours so do what you like with it. So, if it costs anymore than what I give you, you guys can pay for that”.
As to this asserted conversation, Mr Andrews said at paragraph 140.13 of his trial affidavit:
140.13.As to paragraph 93, I deny the conversation took place as stated by [Mr Willmann]. I deny the conversation took place in about mid-2011. It was agreed that [Mr Willmann] and [Ms Willmann] would undertake alterations on the home. While at that stage, I was surprised they wanted to replace the kitchen due to the solid timber quality of the existing kitchen cupboards and the like, I did understand it was old-fashioned and the appliances were old. [Ms Andrews] and I had a discussion and we agreed to allow the renovation and pay $30,000 towards the alterations. [Mr Willmann] and [Ms Willmann] contributed $10,000 towards the alterations for undertaking tasks which [Ms Andrews] and I did not think were necessary. I deny that I ever said: “We’d be happy to help, I will help you pay for it but anything over and above what I give to you guys have to pay for the house is yours, do what you like with it. So if the costs are any more then I give you guys can pay for that”. [Ms Andrews] and I paid for the overwhelming majority of the renovations which cost over $80,000.
By this point in time, of course Mr Willmann and Ms Willmann had already moved into the main home on D Property. Mr Willmann would contend that move was made in reliance upon the promise comprising at least the second representation that D Property would be theirs. Precisely why, given that state of affairs, Mr Willmann felt the need to explain his and Ms Willmann’s intentions was not explored.
Interestingly, this was not the first occasion in which renovations of the main home by Mr Willmann and Ms Willmann had been discussed. As early as 12 April 2007, Ms Willmann seemingly had been asked what she would like to do to the main home, and responded as follows:
Dad / [Mr Willmann]
You asked for it!
Wishlist for the […] house eventually
Downstairs:
•Re-configure & re-fit downstairs bathroom
oKnock out walls
oRe-tile all
oNew shower & vanity & storage
oRe-use bath
•Possible re-fit laundry to match bathroom
•Pull off wardrobe doors in downstairs bedrooms and change maybe to mirrored ones where possible to brighten the rooms. Or change to something else or paint them?
•Recarpet all of downstairs bedrooms & hallway
•Possibly recarpet main living room & study
•Build daybed around the bay window
•Build deck outside and install bi-folds
•Completely redo kitchen and kitchen floor
oNew appliances especially stove
•Put in the timber floor
•Re-paint where the pool table used to be
•Re-paint the downstairs hallway
•Re-carpet the stairs
Upstairs:
•Re-fit mum and dads bathroom completely but try to re-use vanity top as I think its marble?
•Re-fit [Ms Willmann’s] bathroom, maybe re-using vanity?
•Paint upstairs middle room
•Fix taps in the small middle bathroom as they aren’t working
•Possibly replace vanity in the small middle bathroom or at least change colour & handles.
Also, blinds / curtains need adding / replacing in some rooms.
(and that’s just the inside!......)
(Mr Willmann’s trial affidavit, Exhibit MW-38)
Little explanation of the context of that correspondence is able to be gleaned from the evidence, and it does not clearly align with – albeit neither does it contradict – Mr Willmann’s case.
There is some contemporaneous communication relating to the 2011 conversation in the form of an email from Ms Willmann to Mr Andrews dated 20 June 2011 (Mr Willmann’s trial affidavit, Exhibit MW-38). However it does not touch upon the contentious issue of any mention by Mr Andrews to Mr Willmann that “the house is yours” or words to like effect. Rather it is of note that, not only does the email read like it is advising an owner of intended works (and asking Mr Andrews to substantially fund them) but it again begs the question – why, if Ms Willmann (and Mr Willmann) believed that D Property was theirs, were they advising the scope of the works at all? One glaring and probable explanation is that they were effecting changes to what they well knew to be the parents’ property. Of course, Mr Willmann and Ms Willmann were also making some contribution to the renovation costs, although oddly, I accept that the reason for them putting even some “skin in the game” is difficult to fathom, if they were just tenants, albeit not paying rent.
I am not satisfied that, on the balance of probabilities, in any 2011 discussion between Mr Andrews and Mr Willmann, Mr Andrews mentioned anything indicating that “the house is yours” or in any way indicated a current or prospective beneficial ownership of D Property in Mr Willmann and Ms Willmann.
The fourth representation
This representation was not the subject of any pleading in Mr Willmann’s Amended Points of Claim. Nonetheless Mr Willmann’s evidence-in-chief at paragraph 92 of his trial affidavit, was as follows:
92.During about 2012, I had a conversation with [Mr Andrews]. We were standing next to the BBQ out the back of the Main House on the [property]. I was cooking dinner, and the following was stated in words to the effect of:
Me:“I don’t understand how [Mr AE] has access to all of this [referring to [E Company], the [property] and all that he had assess to] and doesn’t grab it with both hands and run with it”.
[Mr Andrews]: “It’s simple. It’s because he’s already on the escalator to the top. He doesn’t need to run with it. He doesn’t even need to walk. He’s on the express ride to the top regardless of what he does”.
Me:“I just don’t get it”.
[Mr Andrews]: “If you and [Ms Willmann] want the [property] its yours and I will divide the other assets up amongst the boys equally”.
Me:“OK”.
As to this, Mr Andrews said at 140.12 of his trial affidavit:
140.12.As to paragraph 92, I deny the conversation took place as stated in 2012. We have never had a conversation where I said “if you and [Ms Willmann] want the [property] it’s yours and I will divide the other assets up amongst the boys equally.”
In his cross-examination, Mr Andrews was a little more forceful in resisting this claim, saying that Mr Willmann “wouldn’t dare” speak with him about Mr AE in that way, as he had had cause to rebuke him for talk adverse to Mr AE before then.
Again, there if no record of, or even reference to, this conversation in any contemporaneous document. There is also something of an oddity in the way in which, on Mr Willmann’s evidence, the contended conversation progressed from Mr Willmann being critical of Mr AE, to Mr Andrews promising Mr Willmann and Ms Willmann a significant asset. There is no easily discernible logical connection between the two, unless it be that Mr Andrews was seeking to mollify some feeling of injustice on the part of Mr Willmann that Mr AE was getting an easier run than he, by promising him and Ms Willmann a significant asset in lieu.
Moreover there is the curiosity that, on Mr Willmann’s case, by then any such conversation was entirely redundant, as D Property had long been promised to him and Ms Willmann by Mr Andrews. One would have thought such a statement by Mr Andrews would have produced a response to the effect that such had been Mr Willmann’s understanding for some years, and was nothing new. But Mr Willmann gives no such evidence. Indeed his evidence under cross‑examination about this was quite odd.
[COUNSEL FOR THE PARENTS:] Okay. And was that a new promise?
[MR WILLMANN:] Not in my mind. Everything on the trajectory that we had taken, from what had been said, and what we were doing, it was all heading in the same direction. You know, our lifestyle, we had moved out there. We had moved out there to (a) not sell the [property], and (b) inherit the [property].
(Transcript 13 March 2023, p.66 lines 35–38)
I say it is odd because the assumption there articulated was not that D Property was then his and Ms Willmann’s, but that they would “inherit” it. That, of course, was not Mr Willmann’s primary case before me.
Of course, an additional problem for Mr Willmann is that Ms Willmann was not a party to this conversation, nor does he say that he relayed it to her. How she could therefore rely on it is not discernible.
But there is a further, and in my view almost unsurmountable, difficulty about this representation, albeit curiously by a later event, namely the 2014 memo. It is not possible to be sure when in 2014 it was created and circulated, but whenever it be, it was only about two or three years after the fourth representation was allegedly made.
Whilst Mr Willmann was at pains to say that the fourth representation was “just continuation of what had already been promised” (Transcript 13 March 2023, p.68 lines 44–45), on no view does the 2014 memo work from that premise. It is consistent, and only consistent, with Mr Andrews (and Ms Andrews) being the persons exclusively entitled to determine what occurred at and with D Property. Particularly the sentence under “?? Possibilities” namely “– sell [property] and lend kids say $1m each with NIL interest to buy a property” is only reconcilable with the parents having the exclusive right to do that. It is entirely inconsistent with the beneficial ownership of D Property being in Mr Willmann and Ms Willmann.
The 2014 memo came into evidence as an exhibit to Mr Willmann’s affidavit filed 20 December 2022, in the course of refuting Ms Andrews’ evidence denying that there had ever been any suggestion of selling D Property. Indeed it does refute that evidence. However its contents are otherwise quite damming of Mr Willmann’s claims.
In cross-examination Mr Willmann sought to explain how it came about as follows:
[COUNSEL FOR THE PARENTS:] Well, let’s go with the possibilities. When this was raised about selling the [property] and lending the kids $1 million each with nil interest to buy a property, did you say to [Mr Andrews] – what are you doing? You’ve already promised the [property] to us. How can you possibly sell it and split the proceeds?
[MR WILLMANN:] Well, the reason this came up was because [Ms Willmann had an issue with the nature of the work] and I didn’t fully appreciate it until we went out one day, and [an incident occurred], and – so we were trying to come up at ways where it would make it easier on [Ms Willmann]. There was also issues where I used to pull staff from the [property], and put them into opening new stores at [E Company].
… And so that also used to put a lot of pressure on [Ms Willmann]. She so – you know, really not like it and get upset with me. And so, 2011, we’ve moved on the [property], and this was a conversation, “Is it too much for you guys? Do you want to move off?”, so these were certainly options. We said no. We wanted to stay. And I think there was another one somewhere in my affidavit, 2015, where [Ms Willmann] and I were playing with Excel spreadsheets on ways to [adjust the property’s stock], and how would it look, and how would it work. So it wasn’t uncommon to have these sorts of dialogue going back and forwards ‑ ‑ ‑ about solutions and options. No.
[COUNSEL FOR THE PARENTS:] So if I can just go back, if I can, to this document, which is [MW9], do you say this was a document given to you in 2014 by [Mr Andrews]?
[MR WILLMANN:] Correct.
[COUNSEL FOR THE PARENTS:] Okay. And do you accept, as is evident from the document, one of the options that was being considered by [Mr Andrews] in 2014 was to sell the [property] and use the proceeds to lend to each of the children ‑ ‑ ‑?
[MR WILLMANN:] Correct.
[COUNSEL FOR THE PARENTS:] ‑ ‑ ‑ $1 million each with nil interest to buy a property. Correct?
[MR WILLMANN:] [Mr Andrews] floated that to us. Yes.
….
[COUNSEL FOR THE PARENTS:] And you did not say to him – wait a minute, old man. That’s our [property]. How can you possibly sell it?
[MR WILLMANN:] I never referred to [Mr Andrews] as old man ‑‑‑ And no, this was the conversation about how – for us to continue staying on the [property] to make it work.
[COUNSEL FOR THE PARENTS:] But one of the options was to sell the [property]; correct?
[MR WILLMANN:] Not in my mind, no.
[COUNSEL FOR THE PARENTS:] No. One of the options being proposed ‑ ‑ ‑ by [Mr Andrews]; correct?
[MR WILLMANN:] Yes, correct.
[COUNSEL FOR THE PARENTS:] And you never said to him, “Well, you can’t consider that because it’s my [property]”; correct?
[MR WILLMANN:] Well, this is more about whether we were pulling out of the deal because it wasn’t working for us, which it wasn’t. There was just ways to make it work better.
[COUNSEL FOR THE PARENTS:] When you say pulling out of the deal ‑ ‑ ‑ what are you talking about; whether “we” were pulling out of the deal?
[MR WILLMANN:] I’m talking about whether [Ms Willmann] and I were continuing on at the [property], or whether it was all too much, or – that’s what I’m talking about.
[COUNSEL FOR THE PARENTS:] So is it your evidence to his Honour that, if you could no longer work on the [property], then the [property] would no longer be yours; is that right?
[MR WILLMANN:] I would imagine that we hadn’t held our end of the deal up, that we didn’t hold it for a period. But – and then, obviously, some sort of conversation would come around it for only having been out there for a few years. That was my understanding of the conversation.
[COUNSEL FOR THE PARENTS:] So just, if I can unpack that ‑ ‑ ‑ So, what you say is that, in 2014 a discussion occurred with [Mr Andrews] as to whether you might have to pull out of the deal; is that what you say?
[MR WILLMANN:] Not to that extent but, certainly, how to make it more enjoyable, certainly for [Ms Willmann], and that was where I said I’ll step up more and do more of the […] work. And then [Ms Willmann] and I had subsequent conversations in ’15 about how to just make it an easier lifestyle, yes.
[COUNSEL FOR THE PARENTS:] Isn’t the simple fact this: that, in 2014, you were considering – is this right – whether you would – on your evidence, you would have to leave the [property] because [Ms Willmann] was no longer enjoying living there because of the [nature of the] work; is that right?
[MR WILLMANN:] I wasn’t considering it. I loved it. But I know that it took a toll on [Ms Willmann], yes. So it’s how to make it work better for her.
….
[COUNSEL FOR THE PARENTS:] And one of the options you were looking at is whether you need to pull out?
[MR WILLMANN:] I wasn’t looking at it but, yes, it was floated.
[COUNSEL FOR THE PARENTS:] Floated by whom?
[MR WILLMANN:] Well, by [Mr Andrews].
(Transcript 13 March 2023, p.70 line 18 to p.72 line 6)
Whilst somewhat complex, nonetheless from that evidence the following emerge:
(a)In 2014, Ms Willmann wasn’t happy on D Property due to the nature of the work;
(b)Mr Willmann was trying to explore ways with Mr Andrews for Mr Willmann and Ms Willmann to stay living there;
(c)Axiomatically, that was not a unilateral decision for Mr Willmann, or Mr Willmann and Ms Willmann;
(d)Mr Willmann’s state of mind was that if he and Ms Willmann “hadn’t held our end of the deal up… for a period” D Property would not be theirs;
(e)Mr Andrews obviously felt that the ultimate decision was his, no doubt in consultation with Ms Andrews and others, including Mr Willmann and Ms Willmann.
In my view (c), (d) and (e) are quite fatal to my being persuaded that there was some past agreement for the transfer of D Property to Mr Willmann and Ms Willmann, and strongly tells against there being any binding promise to do so in the future.
It raises further questions too, even on the premise that earlier representations had been made as Mr Willmann contends. Particularly, if he was acknowledging by his conduct in 2014 that any entitlement to D Property was executory, in that he and Ms Willmann needed to stay there for sufficient time to warrant D Property beneficially vesting in them, then he was implicitly acknowledging that three years was not enough. Yet given that he and Ms Willmann separated only (unless the memo was circulated in January 2014) less than four years later, his case must be that somehow by then the beneficial ownership had vested. One rhetorically asks, “why?”. An alternative I suppose might be that Mr Willmann and Ms Willmann’s separation, in some way which is difficult to conceive, caused vesting to accelerate. However it is all rather problematic. It is only further confused by Mr Willmann’s reference in his cross-examination which I have already recited, that he and Ms Willmann were to “inherit” D Property.
I am not satisfied that the fourth representation occurred, or if a conversation then occurred, that it included any offer of D Property to Mr Willmann and Ms Willmann.
The fifth representation
Again, the fifth representation was not pleaded by Mr Willmann in his Amended Points of Claim.
The evidence as to this contended conversation was at paragraph 94 of Mr Willmann’s trial affidavit as follows:
94.In about Christmas of 2014, I was standing on the driveway of the [property] with [Mr Andrews] having a discussion with [Mr Andrews] about the [property] and the various work that I had been doing on the [property]. [Mr Andrews] pointed to a tree beside the driveway where we were walking. The following was said, in words to the effect of:
[Mr Andrews]: “That tree. When I was living here, we would cut the lower branches from the base of the tree up higher to promote them growing up and look like trees rather than shrubs”.
Me:“Oh yeah. That’s sounds like a good idea. That’s easy. I’ll do that now”.
[Mr Andrews]: “That OK. It’s your place. You just do it how you see fit”.
As to this, Mr Andrews responded at paragraph 140.14 of his trial affidavit:
140.14.I refer to paragraph 94. I do not recall any conversation taking place at Christmas of 2014. Cutting of lower branches of our hundreds of trees is standard practice on the [D Property]. I had instigated this practice in the mid‑1980s after we planted the trees. The [trees] in the driveway had been planted by us in 1984 and it was evident from the nodules on the trunks that the branches had been cut over the years. I deny that I ever said: “It’s your place, you just do how you see fit”. [Ms Willmann] always kept us informed of anything she wanted to introduce to the house and asked for our thoughts and approval.
It must be appreciated that this alleged representation occurred at most, a little less than 12 months after the sale of D Property had been explicitly raised in the 2014 memo, at a time when Mr Willmann implicitly acknowledged in his evidence that D Property had not – at least then – vested in him and Ms Willmann. It is simply not possible to reconcile in any logical way, Mr Andrews’ plain exercise of complete ownership of D Property in the 2014 memo, with him then, only months later saying, as Mr Willmann would interpret the alleged conversation, that D Property was Mr Willmann and Ms Willmann’s to do with as they want.
I am not satisfied that there was any suggestion by Mr Andrews at Christmas 2014 that D Property was Mr Willmann’s, or Mr Willmann’s and Ms Willmann’s. Even if the contended statement was made, as to which I am not satisfied, then the words “it’s your place” is at least consistent with the rights of a tenant, rather than necessarily indicative of a beneficial ownership. Indeed viewed in isolation, a suggestion that Mr Willmann could lop limbs off trees was a sufficient foundation for an equitable interest in all of D Property approaches ludicrous.
Again Ms Willmann was not privy to this conversation and there is no evidence of Mr Willmann relaying it to her. How it could therefore operate to render any resiling from it unconscionable as against her is difficult to conceive.
Evaluation
I am not persuaded that any of the representations were made in the terms, or having the purport, asserted by Mr Willmann.
In so concluding I have not overlooked that between 2011 and 2018 Mr Willmann and Ms Willmann did perform considerable work on D Property, including of a managerial kind. However I am comfortably satisfied that is best explicable by their free occupation of the main home, the payment of their utilities, and the fact that at least Mr Willmann enjoyed the lifestyle which living on D Property afforded both him and Ms Willmann. I conclude that the facts are far more consistent with an inter-family arrangement that Mr Willmann and Ms Willmann, in exchange for all the benefits of free occupation in the main home on D Property, would do additional work and assume greater responsibility on the property. Whilst that work was likely more than the Andrews conceded, it was not of a magnitude that it is only rationally explicable on the basis of ownership of D Property either having passed, or being promised to pass, to Mr Willmann and Ms Willmann.
Particularly it cannot be overlooked that notwithstanding the additional workload, Mr Willmann continued in a well-remunerated role at E Company, being employed there full time for all of the relevant period. Ms Willmann, as I understand it, remained a director and shareholder.
That is not to say that Mr Willmann might not have sorely wished that he and Ms Willmann owned D Property, and indeed may have, consciously or not, been angling to make himself indispensable in its operation so as to suggest that he and Ms Willmann owning it was a natural progression, but that is not his case, nor would it found equitable relief.
I have not traversed a number of other hotly disputed matters in assessing whether the representations, or any of them, were made, as they are at best peripheral. Two examples will suffice. Firstly, there was considerable time taken exploring whether, and if so how and why, Mr Willmann’s and Ms Willmann’s names were on a sign at the front gate of D Property as its managers. Ultimately it was plain that occurred. But it matters not whether the parents held Mr Willmann and Ms Willmann out as managers, or permitted Mr Willmann and Ms Willmann to do so, as that is not only consistent with the representations Mr Willmann contends for, but is equally explicable with the Andrews’ evidence as to how Mr Willmann and Ms Willmann came to live on D Property. It goes nowhere.
Secondly, there was an effective line of cross-examination of Mr Andrews and Ms Andrews (and others) by senior counsel for Mr Willmann, by reference to wages records of property employees, which established that their evidence as to the degree to which employees were involved at the property in relevant years was likely overstated. Upon balance, I am satisfied that, at least on the evidence, it likely was overstated, the inference being that Mr Willmann and Ms Willmann necessarily filled that void. Whilst that conclusion does not necessarily follow, even if it did, it does not mean that is explicable only, or best, by the alleged representations being any part of the reason for that. Again it is at least equally explicable by the Andrews’ evidence as to the arrangements underpinning Mr Willmann and Ms Willmann’s move to, and living on, D Property.
THE BALANCE OF MR WILLMANN’S CLAIM
Generally
Given that I am not satisfied that any promise of the transfer of any interest in D Property from the parents to Mr Willmann and Ms Willmann ever occurred, strictly speaking I am absolved from dealing with the balance of Mr Willmann’s claim, as it falls at the first hurdle.
However it was established by the evidence at trial that Mr Willmann has the benefit of litigation funding, already drawn down beyond $1 million. Given that significant investment by the funder will be futile if my judgment stands, and further that the parents have already claimed that any adverse costs order arising from Mr Willmann’s failure should be borne in the first instance by the funder, it would be naïve to think that an appeal from this decision is anything but almost guaranteed. It is therefore desirable, should it prove that I am in error in failing to be satisfied that the representations were made as alleged, that any appellate court should have the benefit of my findings on the other contentious matters. Therefore where it is feasible – and it is not universally so – I shall resolve the balance of the controversial matters in the litigation, albeit in a somewhat truncated manner.
Inducement
It was not seriously suggested by the parents that, if one or more of the representations was established, it did not materially induce reliance on it by Mr Willmann and perhaps also Ms Willmann. That said, the point which I have made relating to the lapse of time between the second representation in 2008/09 and Mr Willmann and Ms Willmann’s 2011 move to D Property was not emphasised in that context, although it could well have been. Likewise the significance of the timing of the 2010 email and the 2014 memo. However if I had found that the representations had been made in the terms asserted, I would conclude that reliance by Mr Willmann, but not Ms Willmann, was established, especially given that the representation only needs to be material to the subsequent conduct. However the evidence could not possibly persuade me of any reliance by Ms Willmann.
Detriment
Mr Willmann contended that the detriment which he (and Ms Willmann) suffered in consequence of their reliance on the representations was:
(a)his work on D Property;
(b)a diminished opportunity to participate by way of investment or other involvement in the Sydney property market;
(c)a diminished capacity to pursue his career at E Company; and
(d)the increased risk – which eventuated – that his and Ms Willmann’s relationship may not last.
It is convenient to deal with them in reverse order. Although not previously foreshadowed, this alleged detriment was borne from an answer Ms Willmann gave in cross-examination as follows:
[COUNSEL FOR MR WILLMANN:] And do you think the break-up in part came about because of the life you had together on the [property]?
[MS WILLMANN:] That’s a hard one to answer, because I would have liked to have had my own house and my own place, which [D Property] wasn’t.
[COUNSEL FOR MR WILLMANN:] So do you think it might have been a contributor to the breakdown in your relationship? … Moving and living on the [property]?---
[MS WILLMANN:] Possibly. I don’t think you can absolutely pinpoint why people break up or why people fall out of love.
(Transcript 16 March 2023, p.479 line 38 to p.480 line 2)
The aetiology of a relationship’s failure will often involve multiple factors as Ms Willmann’s evidence recited above itself made plain. Even if the risk of relationship failure is a detriment which may feed an estoppel or inform unconscionability – as to which there appears no authority either way – I am not persuaded that there is a sufficient connection between the reliance, or more precisely, the action taken in reliance on the promises or assumption, and the risk of, or actual, failure of the relationship. I would need to know a lot more about how and why it failed before I would be prepared to be so satisfied.
As to Mr Willmann’s impaired ability to advance at E Company, other than his claim to that effect, there is no evidence to support such an argument. Indeed, perhaps understandably, given the relationship failure, the Andrews’ generally did not seem to think a great deal of Mr Willmann’s value to the E Company business. Even prior to separation, his brothers-in-law disliked or even strongly disliked him, which does not seem to be a great foundation for a stellar career.
I am not satisfied that Mr Willmann’s progress in his employment was impaired in any way by any action he took in reliance on the representations.
Turning to the contended inability to participate in the Sydney property market, although this was never fully explained, I infer that such participation would have involved Mr Willmann and Ms Willmann buying, renovating and then selling homes that they lived in, so as to make any capital gains exempt from taxation. I say that because Mr Willmann and Ms Willmann did participate in the Sydney property market generally by virtue of their profitable ownership of the Suburb F property between 2005 and 2018, and their similarly profitable part ownership of the AP Property between 2012 and 2017.
Again, beyond Mr Willmann’s say-so, there really is little evidence which would support a finding on the balance of probabilities that, but for the representation, Mr Willmann and Ms Willmann would have done what Mr Willmann says they would (perhaps, on one view Ms Willmann’s evidence-in-chief supported it, but it is still unpersuasive). Particularly, there is no evidence that the Suburb F property was renovated in the four years when they lived there, and indeed when they moved out, it was not sold but rather retained and rented out while they lived in the grandmother’s unit for about two years, according to Ms Willmann, so they could live there when X went to school. To my mind this does not speak to some habit or pattern of buying and selling capital gains tax free residential property with a view to profit. I am not persuaded that detriment of this kind was suffered.
That then only leaves the work which Mr Willmann and Ms Willmann performed on D Property, both before and after they moved to live in the main home in 2011. Some dissection of that work is required.
Until 2008, the work was not in reliance on any contended promise of ownership, as none had been made, even on Mr Willmann’s case. Moreover, Mr Willmann did not say that there was any change in his perception of his “[property] duty” work after 2008, until 2011. In any event, if it was a detriment, it was suffered by members of the Andrews family on the property duty roster.
No attempt at valuing such work was made by Mr Willmann, and obviously it also had non‑remunerated benefits – as it often involved Mr Willmann and Ms Willmann staying on D Property for free on one or more nights, and involved activities which both Mr Willmann and Ms Willmann enjoyed.
If it be detriment, it is miniscule.
Post 2011, things were different, but the facts do not necessarily favour a claim of detriment. Mr Willmann and Ms Willmann and their children, together with their au pairs, lived rent free in the premium accommodation on D Property. It was not disputed that they could not otherwise have afforded housing of that standard. Moreover, obviously there was an attendant lifestyle which was very much to Mr Willmann’s taste, and perhaps also Ms Willmann’s, and all utilities were provided free. None of this was really controversial.
What was controversial however was what, not so much Ms Willmann, but Mr Willmann, did by way of work on D Property, with Mr Willmann contending he did far more than the Andrews were prepared to concede. As I have explained already, in broad terms I accept that is likely so, albeit I did also form the impression that Mr Willmann was at pains to give undue significance to some tasks which were not deserving of it. An example will suffice. Mr Willmann claimed one of his duties was fixing tape fencing. However the maintenance largely comprised putting the tape fencing back in its holder if it had been dislodged.
The Andrews’ evidence about the extent of Mr Willmann’s work suffered in two respects. Firstly, apart from Ms Willmann, none of them were on the property for much of the time Mr Willmann was there, and therefore simply could not know what he was doing, including managerial work done relating to the property when he was at E Company’s offices. Even Ms Willmann was not with Mr Willmann when he was doing much of the work he claimed. Secondly, and perhaps unconsciously, as I have already explained, I am satisfied that the Andrews tended to downplay the work which Mr Willmann did do to their knowledge, perhaps aware it was potentially in favour of his case.
Gauging the magnitude, or indeed materiality, of any detriment is very difficult. Although as I have already noted, senior counsel for Mr Willmann effectively demonstrated apparent savings on wages during the time Mr Willmann and Ms Willmann were living at D Property, no attempt was made to value the free accommodation and utilities which living there afforded them. Upon balance, I am not satisfied that Mr Willmann’s work, vis-à-vis the “trappings” of living on D Property, is properly seen as detrimental.
In what I assess to be approaching desperation, Mr Willmann lunged at the phrase deployed by Nettle JA (as his Honour then was) in Donis v Donis (2007) 19 VR 577 at [34] (cited with approval by the High Court in Sidhu v Van Dyke (2014) 251 CLR 505 at [84]) that his and Ms Willmann’s move to D Property was “life changing”. Indeed it was; it enabled them to live in a way that profoundly suited Mr Willmann, and perhaps his and Ms Willmann’s mutual desire to live in a degree of comfort that was otherwise beyond their means. To suggest that such was a detrimental “life changing” move, borders on absurd.
As shall be seen, in the event that I am wrong in virtually all respects, such that equitable relief should be afforded to Mr Willmann and Ms Willmann, it ought only be in the nature of compensation, perhaps secured by a charge, yet I would require further material and submissions in order to even commence upon a quantification of that compensation, as the evidence does not really permit much progress down that path at present.
As regards detriment however, the onus remains on Mr Willmann to satisfy me of it on the balance of probabilities. Given that I am not satisfied that any of Mr Willmann’s (much less Ms Willmann’s) contended action taken in reliance on any representation or assumption was in any real way detrimental, it follows that Mr Willmann’s claim fails in that respect also.
Detriment is not established to the requisite standard.
Discretionary bars
Perhaps some reliance was placed by the parents upon discretionary bars to relief, being acquiescence (based on Mr Willmann’s failure to demur to the 2014 memo from Mr Andrews) and lack of clean hands, comprising a failure to undertake proper disclosure as discussed previously. However given my conclusions above, it is not necessary for me to discuss those further, and more, the utility of doing so, given the spectrum of possible scenarios that might arise by the time of considering discretionary bars, is doubtful, as I discuss in the immediately following paragraphs.
The appropriate equitable relief
There is a strong air of artificiality in addressing this at all, given the conclusions I have previously reached, which are fatal to any form of equitable relief flowing to Mr Willmann (and much more so to Ms Willmann). Further, although I do so to cover the eventuality that I am found to be wrong in those respects, it is not sensible to address the relief which ought follow, on each and every permutation and combination of possible error, which might involve some, but not all, representations being found to be established, and thereafter some, but not all, claimed detriments being recognised.
However I do propose to address the case in broad terms as follows.
As I have already noted, I am deeply troubled by the enormous disproportionality between the claimed detriments, and the relief primarily sought. Although Mr Willmann relied upon recent authority which focusses upon, in effect, equity fulfilling the claimant’s expectations, that cannot be a universal rule, and I would strive to avoid its application here because of the very disproportionality I identify. In simple terms, I can identify no warrant on any scenario for the imposition or recognition of a constructive trust, such that Mr Willmann and Ms Willmann have the beneficial interest to D Property, so as to require its transfer to them. Success in an equitable claim is not a lottery jackpot.
Rather, in my view, at most equity would require the proper compensation of Mr Willmann (and perhaps Ms Willmann) for the value of any detriment they suffered in reliance upon one or more representations. However the task of quantifying that is simply not able to be commenced to be embarked upon, much less concluded, on the current state of the evidence. I would need to know the commercial value of their labours over time, and the commercial value of the benefits they received. If there was other detriment established, some evidence – or at least submissions – as to its value would be needed, which is presently wholly impossible to gauge beyond mere guessing, or plucking figures out of nowhere.
One option might be to order the taking of accounts and the making of inquiries, although no party sought it. Therefore even if I were wrong in virtually all respects, unless my errors also included the failure to impose or recognise a constructive trust of D Property, the matter could not presently end in final judgment, but rather would need to be relisted for further argument and directions to enable it to conclude on proper material.
CONCLUSION
Mr Willmann’s claim (and Ms Willmann’s claim brought by Mr Willmann), against the parents fails, and will be dismissed.
I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 28 July 2023
- AGLC
- Willmann & Willmann (No 10) [2023] FedCFamC1F 623
- Case
- [2023] FedCFamC1F 623
- Decision Date
CaseChat Overview and Summary
The court considered various aspects of Mr Willmann's claim, including his contributions to the property, the nature of his relationship with his parents, and the circumstances surrounding the acquisition and management of D Property. The court examined the evidence provided by Mr Willmann, his parents, and other witnesses, and assessed the validity of Mr Willmann's claims in light of the relevant legal principles. The court determined that Mr Willmann's claim against his parents failed, and his claim against his sister and her husband was also dismissed. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents.
In conclusion, the court dismissed Mr Willmann's claim against his parents and sister, and no further orders were made in relation to the property settlement. The court found that Mr Willmann's contributions to D Property were not sufficient to warrant a property settlement order, and that any contributions he made were adequately recognised or compensated by his parents. The court also found that there were no other grounds upon which Mr Willmann could be entitled to a property settlement. The decision of the court brings finality to the proceedings and ensures that the parties are aware of their respective rights and obligations in relation to D Property.
Orders
Orders of the court
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