Woodley v Woodley [No 5]

[2018] WASC 311

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WOODLEY -v- WOODLEY [No 5] [2018] WASC 311

CORAM:   ALLANSON J

HEARD:   19 JUNE - 2 JULY, 21 AUGUST, 9 OCTOBER 2018

DELIVERED          :   19 OCTOBER 2018

FILE NO/S:   CIV 2080 of 2013

BETWEEN:   TERRY RAY WOODLEY

Plaintiff

AND

ROSS MAXWELL WOODLEY

First Defendant

ROSS MAXWELL WOODLEY and RAYMOND THOMAS WOODLEY As Executors of the Estate of the Late Shirley Grace May Woodley

Second Defendants

Catchwords:

Equity - Estoppel - Where plaintiff alleges farm promised to him on death of parents - Where farm held in joint tenancy with first defendant - Where plaintiff's mother transferred her interest to first defendant following death of the plaintiff's father - Where plaintiff alleges oral agreement between parents and first defendant - Whether joint tenancy severed - Whether sufficient evidence of alleged oral agreement and promises - Turns on own facts

Real property - Torrens title - Whether first defendant registered as proprietor by fraud - Turns on own facts

Administration of estates - Where plaintiff alleges first defendant caused loss to estate - Whether plaintiff as beneficiary can bring proceedings for damages

Legislation:

Transfer of Land Act 1893 (WA), s 68

Result:

Judgment entered for the first defendant
Plaintiff's action dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr P G Donovan & Ms H J Burnside
Second Defendants	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendant	:	MDS Legal
Second Defendants	:	No appearance

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

Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109

Banque Commerciale SA, En liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Blacket v Barnett [2017] NSWSC 1032

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2; (2015) 254 CLR 425

El Sayed v El Hawach [2015] NSWCA 26; (2015) 88 NSWLR 214

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89

Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179

Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407

Lewis v Condon [2013] NSWCA 204; (2013) 85 NSWLR 99

Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51

Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

Stuart v Kingston [1923] HCA 17; 32 CLR 309

ALLANSON J:

1. The plaintiff, Terry Woodley, is the youngest of the five children of Thomas and Shirley Woodley (both now deceased).  The first defendant, Ross Woodley, is the oldest child.[1]

   [1] To identify the parties and other relevant people - all of whom share the family name Woodley ‑ I will use given names in these reasons.  I mean no disrespect by this informality.

2. From about 1968, Thomas, Shirley and Ross were the registered proprietors, as joint tenants, of farming land in Coronation Road, Waroona (the Coronation Road property).

3. Thomas died in January 2010. 

4. In May 2010, Shirley transferred her interest in the Coronation Road property, described on the transfer as a half share, to Ross.  Ross' title was registered in October 2010. 

5. Shirley died in July 2011.

6. In February 2013, Terry lodged a caveat over the Coronation Road property.  In April 2013, Ross sold the Coronation Road property, and the proceeds of sale have been held in trust awaiting the outcome of this action.

7. Terry commenced this action by writ filed on 9 July 2013.

8. At the heart of this case is Terry's claim that, during their lifetimes, his parents had promised him that the Coronation Road property would be his on their death.  This claim must confront two obstacles:  Thomas and Shirley held title as joint tenants with Ross, so that unless the joint tenancy was severed during their lifetimes they did not have an interest that could be transmitted by will; and, before the sale in April 2013, Ross held title as the registered proprietor.  To meet those issues, Terry further alleges that, as a result of an oral contract between Ross and his parents, from 1977, Ross held his interest as a joint tenant in the Coronation Road property on trust for his parents.  Terry also alleges that Ross' title as sole registered proprietor was obtained by fraud on Shirley. 

The application to adjourn

1. On the first day listed for trial, Terry applied to adjourn.  I dismissed the application and said I would give reasons in the reasons for decision.

2. Terry did not give notice before trial that he intended to apply to adjourn it.  In applying for an adjournment, he put forward these reasons for why he was not ready for trial:

   (1)his legal representatives had not done their job fully with regard to the preparation of witness statements and the book of documents for the trial, and left him only partly prepared;

   (2)his legal representatives had not kept him fully informed about orders that the court had made;

   (3)he had been in bad health over the previous three or four months, and also had been working extremely long hours.[2]

   [2] ts 166 ‑ 167.

3. Counsel for Ross submitted that:

   (1)the orders for witness statements had first been made on 30 August 2017, and Terry had been given further time for compliance;

   (2)Terry's complaint that his legal representatives had not done their job was not consistent with his own statement on affidavit[3] that he gave them only limited instructions and was, in effect, in control of the process of completing witness statements;

   (3)Ross suffers from Parkinson's disease and has suffered psychological issues arising from the stress of the proceedings;

   (4)the amount in issue in the proceedings is a relatively modest sum, which had been tied up in a low interest bank account for about five years.[4]

   [3] Sworn 23 May 2018.

   [4] ts 171 ‑ 172.

4. The factors identified by Ross in submissions were, in my opinion, cogent. 

5. This action commenced in 2013. At a directions hearing on 24 November 2017, I asked the parties to ascertain their availability for a trial in May 2018.  On 13 December 2017, I fixed the dates of 19 June to 2 July 2018, to meet the availability of Terry's witnesses.

6. Sometime between 13 December 2017 and 4 January 2018, Terry engaged solicitors to act for him.[5]  He was already out of time to file his evidence.

   [5] Affidavit of Terry Woodley sworn 15 June 2018 [1].

7. On 9 May 2018, I extended the time for Terry to serve his witness statements to 16 May 2018.

8. On 18 May 2018, in the face of Terry's continued failure to file his witness statements, I ordered that he was not to adduce evidence from any witness without leave of the trial judge, and that any application for leave was to be filed by 23 May 2018 together with a copy of each witness statement, and supported by an affidavit explaining his failure to comply. 

9. On 18 May 2018, I made further orders that, in effect, permitted Ross to prepare the book of documents on which he intended to rely at trial without waiting for compliance by Terry.  I also ordered that by 1 June 2018, Terry prepare a book of the documents on which he intended to rely at trial and file and serve an application for leave to rely on those documents supported by an affidavit explaining his failure to comply with the orders made 9 May 2018 in relation to the documents to be used at trial.

10. In an affidavit of 23 May 2018, in support of the application for leave, Terry deposed that his instructions to his solicitor were very limited and he wanted to do the majority of the work preparing witness statements and documentary evidence himself. 

11. On 30 May 2018, Ross applied for a springing order should Terry fail to comply with the orders regarding filing of evidence by 5 June 2018.

12. At a directions hearing on 31 May 2018, Terry was represented by counsel, who advised the court that his instructing solicitor had just been provided with a draft of Terry's witness statement.

13. I did not make a springing order, advising the parties that my intention was to proceed to trial.

14. On 11 June 2018, Terry advised his solicitors that he would represent himself.[6] The notice of change of representation is dated 12 June 2018, but was not filed immediately.

    [6] Affidavit of Terry Woodley sworn 15 June 2018 [11].

15. Terry filed his own witness statement ‑ the principal statement in his claim ‑ only on Monday, 18 June 2018, the day before the trial began.  He provided it to the defendant the Friday before.  

16. Each party provided a bundle of trial documents.  Terry had also failed to comply with the order regarding trial documents.  He provided the documents on which he wished to rely ‑ two volumes of 1,608 pages ‑ to Ross' solicitor the evening of the day before trial.  Although the bundle was indexed, the description in the index was frequently unhelpful.  Several documents were extracts only from larger documents.  Documents were repeated.  A great number of them were irrelevant.  

17. While not currently represented, Terry had been represented in the months leading up to trial.  He is well educated, and an experienced litigant.  Having regard, in particular, to his affidavit of 23 May 2018, I was not satisfied by his attempt to place responsibility for his failure to comply with court orders on the conduct of his solicitor.  

18. In my opinion, it was not in the interests of justice to further delay the trial having regard to the time that had already passed since the action commenced; the procedural history outlined above; the health and age of Ross; the importance of not leaving a serious allegation of fraud against Ross unresolved; and the comparatively modest amount in issue and the period for which it had been tied up.

19. In proceeding with the trial, notwithstanding the prejudice undoubtedly suffered by Ross, I allowed Terry to call witnesses and rely on witness statements and documents despite his non‑compliance.  I further permitted Terry to supplement his witness statement with oral evidence where the statement was objectionable in form.

The valuation evidence

1. While I permitted Terry to rely on evidence and documents, despite his failure to comply with pre-trial orders, that indulgence did not extend to the proposed valuation evidence.

2. On 24 November 2017, orders were made extending the time for the plaintiff to provide to the defendants a copy of the report or the substance of the evidence of any expert witness from September 2017 to 22 December 2017.

3. Terry had earlier provided a valuation report of Ms Kate Bingham.  On 29 November 2017, he was advised that Ms Bingham no longer worked for the firm, and Mr Ross Lambert would be available to give evidence but would need to inspect the property before the hearing.  Initially it was proposed that, as Mr Lambert had supervised and was familiar with the report of Ms Bingham, he would give evidence in accordance with her report. 

4. On 21 June 2018, Terry provided the defendant's solicitors with a copy of Mr Lambert's report.  The report is only dated 19 June 2018, the first day of trial.  Mr Lambert differed from Ms Bingham, in his conclusion (although only in relation to the value of improvements, not land value) in some details, and his methodology.

5. The solicitors for Ross objected to the report being received, when Terry had not complied with the orders regarding expert evidence, and when the report was provided only in the course of the trial. 

6. Counsel further objected that the report appeared to relate to an allegation that the Coronation Road property had been sold below its market value, but with no clear articulation of any cause of action or of any duty that had been breached in the circumstances.

7. Terry's explanation for the non-compliance was to, again, blame the solicitors who were on the record from January until June 2018. 

8. In Skahill v Kestral Holdings Pty Ltd (in liq), Owen and Heenan JJ said:

   Devising and applying appropriate sanctions for non-compliance is one of the major problems which case managers face. An innocent party is entitled to expect that the Court will act to support the integrity of its processes where another party is in default. On the other hand, case management is a means to an end and not an end in itself. All processes and sanctions must be carried out and imposed in a way that will facilitate the achievement of justice.[7]

   [7] Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [17]; see also Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179.

9. In my opinion, admitting the report which had been provided so late would simply have been unfair to the first defendant.  The defence was already having to deal on the run with witness statements and two volumes of trial documents filed very late.  I do not accept Terry's attempt to lay all blame on his legal representatives.  I accept, as Terry deposed in his affidavit of 23 May 2018, that his instructions to his solicitor were limited.  The responsibility, in my opinion, lies with Terry.

10. The effect of refusing the evidence would be, were Terry successful, to possibly limit the amount of his claim to the amount actually received on the sale of the Coronation Road property.

11. Taking those matters into account, I was satisfied that the proper way to deal with Terry's default, in this instance, and to avoid prejudice to the innocent party, was to refuse Terry leave to call the expert.

The evidence

1. Terry gave evidence and called, in support of his case:

   (1)his son, Hayden James Slee;

   (2)his wife, Valentina Woodley; and

   (3)Colin John Bosustow, who was called as an expert on farming practice.

2. Ross gave evidence, and called (in the order called):

   (1)his son, Mark Andrew Woodley;

   (2)his brother, Raymond Thomas Woodley (Ray);

   (3)his wife, Roslyn Patricia Woodley;

   (4)his brother, Wayne Charles Woodley; and

   (5)Robert Clarence Pritchard Farris, the agent engaged for the sale of the Coronation Road property.

3. The evidence‑in‑chief of the witnesses was adduced through tender of witness statements, subject to rulings on objections. 

4. It is difficult to assess the testimony of principal witnesses, particularly the four brothers.  In the course of the trial, the parties referred to other actions in this court between Terry and members of the family.  They have been opposing each other in court on different fronts for several years.  There were several occasions when mutual ill feeling and distrust between Terry and his brothers were manifest.  Terry has reported at least one of his brothers to the Australian Taxation Office.  Terry made serious allegations of fraud against Ross and asked the court to draw inferences unfavourable to his other brothers, from the flimsiest of bases in evidence.

5. Counsel for Ross submitted that the court should find that Terry was generally not a credible witness.  Counsel submitted:

   (a)much of Terry's evidence was implausible, internally inconsistent and/or contrary to the weight of other evidence;

   (b)Terry demonstrated a tendency to blame others for deficiencies in his evidence, particularly his former lawyers;

   (c)Terry made a number of very serious allegations against Ross and other witnesses, including fraud and other criminal conduct, that were not supported by evidence;

   (d)Terry sought to retract concessions that he made in cross-examination on a number of occasions; and

   (e)Terry made allegations that clearly arose from no more than pure speculation and were unreasonable.[8]

   [8] Defendant's written closing submissions [5].

6. Each of those observations is accurate.  I do not believe that I should reject Terry's evidence unless it is corroborated in some way.  But it needs to be looked at carefully, and on some critical issues, I have been unable to accept his evidence and my general unfavourable view of his credibility has contributed to those findings.

The pleaded cases

Statement of claim

Relief sought

1. It is convenient to start with the relief sought in the statement of claim.

2. The principle relief regarding the Coronation Road property is found in pars (a) to (c), (e), and (f) of the prayer for relief.

   (a)A Declaration that the interest held by the Defendant from 1977 in the Coronation Road Property was held in trust for Thomas and Shirley Woodley.

   (b)A declaration that the interest held by Thomas Woodley in the Coronation Road Property prior to his death was held on trust for the plaintiff.

   (c)A declaration that the interest held by Shirley Woodley in the Coronation Road Property prior to her death was held on trust for the plaintiff.

   (e)A declaration that the Defendant as sole registered proprietor of the Coronation Road Property held the Coronation Road Property on trust for the plaintiff or alternatively the interest in the Coronation Road Property previously registered in the names of Thomas Woodley and Shirley Woodley on trust for the Plaintiff.

   (f)An order that the defendant do pay to the plaintiff the proceeds of sale of the Coronation Road Property, alternatively such proportion of the sale proceeds as may be found by this Honourable Court to be commensurate with the equitable estate or interest that the Plaintiff has held in the Coronation Road Property.

3. Terry also sought orders, in pars (d), (g) and (h) relating to an allegation that the Coronation Road property was sold for less than its value at 24 February 2010, and for compensation for the loss of value.[9]

   [9] The significance of 24 February 2010 is, so far as I am aware, not explained.  The land was not sold until April 2013.

4. Finally, Terry sought orders for Ross to pay him compensation for the sale of cattle and hay, and to pay compensation to the estate of his mother for the proceeds or value of cattle, hay, machinery, plant and equipment and fixture and fittings, removed from the Coronation Road property or dealt with by Ross.

5. Terry's pleaded case relied on the following factual allegations, which were not in dispute:

   (1)Thomas, Shirley and Ross carried on partnership from 1966 to about October 1977;[10]

   (2)the Coronation Road property was purchased in about August 1968, using funds of the partnership and used as part of the farming operations of the partnership;[11]

   (3)in about October 1977, the partnership was dissolved and there was a distribution of cash and other assets;[12]

   (4)after the dissolution of the partnership and the distribution of assets, the Coronation Road property remained in the names of Thomas, Shirley and Ross as joint tenants;[13]

   (5)Ross ceased to have any further involvement in the farming business of the partnership and ceased to have any further involvement with the Coronation Road property, and made no contribution to the expenses associated with the Coronation Road property;[14]

   [10] Statement of claim [4].

   [11] Statement of claim [5] - [6].

   [12] Statement of claim [7].

   [13] Statement of claim [8].

   [14] Statement of claim [9].

6. The following allegations were disputed:

   (1)there was a verbal agreement between Thomas, Shirley and Ross in or about 1977, following the dissolution of the partnership under which Ross was to regard the Camarri property as his and enjoy quiet possession and ownership thereof and Thomas and Shirley were to regard the Coronation Road property as theirs and enjoy quiet possession and ownership thereof to the exclusion of Ross;[15]

   (2)from approximately 1992 until 2010 Thomas and Shirley 'regularly and on numerous occasions told the Plaintiff that the Coronation Road property would be his, when they passed away';[16]

   (3)from 1992 to 2010, Terry contributed his labour and made financial contributions to maintaining and improving the Coronation Road property;[17]

   (4)Thomas and Shirley encouraged Terry to make those contributions, encouraged him to expand the ambit of farming operations conducted from the Coronation Road property by encouraging him to acquire a further property to be used in conjunction with the Coronation Road property, and told him he should take an even more active role in managing the property;[18]

   (5)in January 2004, Terry purchased a farm approximately 2 km from the Coronation Road property;[19]

   (6)after the death of Thomas, on about 13 May 2010, Shirley transferred or purported to transfer '50% of her interest in the Coronation Road property' to Ross;[20]

   (7)at the time of the transfer, Shirley was in ill health, was 'often dazed or confused' and made incoherent or illogical statements;[21]

   (8)from 1992, Ross was aware or had constructive knowledge of or had become aware of Terry's contributions, that Ross no longer held an entitlement to claim an interest in the Coronation Road property, that Thomas and Shirley had told Terry that Terry would inherit the property, and that Terry had contributed to the property.[22]

   [15] Statement of claim [9(g)].

   [16] Statement of claim [13].

   [17] Statement of claim [14].

   [18] Statement of claim [15].

   [19] Statement of claim [15(g)].

   [20] Statement of claim [18].

   [21] Statement of claim [19]; Terry does not expressly plead that Shirley lacked capacity to make the transfer.

   [22] Statement of claim [25].

1. Based on those allegations, Terry asserts that the joint tenancy between Thomas, Shirley and Ross was severed.  Terry claims an equitable interest in the Coronation Road property up to the death of Shirley and the legal and beneficial ownership of the whole of the property from her death.[23]  Alternatively, he claims a proportion of the sale proceeds of the Coronation Road property to reflect his estate or interest.[24]

   [23] Statement of claim [26] ‑ [27].

   [24] Statement of claim [34].

2. The amendment introduced in 2014 pleads that Ross 'committed fraud on Shirley Woodley by creating a false belief as to the true nature of the transfer and surrounding events'.[25]  The plea has 25 paragraphs of 'particulars', many of which allege matters after the transfer and after Shirley's death.   They also include the allegation:

   On or before 22 April 2010, the defendant created a deceitful false belief in Shirley Woodley that the transfer of the Coronation Road Property was part of an overall Deed of Arrangement that the five siblings of Thomas and Shirley Woodley had entered in to.  No such Deed of Arrangement was made.[26]

   [25] Statement of claim [35].

   [26] Statement of claim [35(d)].

3. Later paragraphs in the statement of claim plead a range of matters relating to the financial position and property owned by Ross and his son Mark, and some companies in which Ross was a shareholder or director.

4. Terry pleads that Ross has caused him loss and damage, including 'the future benefits of an income stream, the capital appreciation and the economies of scale that would have resulted from the Coronation Road property and the favourable purchase of a third adjacent property and the income, capital growth and economies of scale that it would have also allowed'.[27]

   [27] Statement of claim [41].

5. Terry also pleads that Ross acted dishonestly with a deliberate intention to mislead and removed cattle, hay crop, machinery, equipment and assets from the Coronation Road property; that he did not maintain the property prior to sale, and 'generally abandoned the Coronation Road Property from July 2011 onwards'.[28]

   [28] Statement of claim [41(e)] ‑ [41(i)].

Defence

1. Although Terry's pleading was patently deficient in many ways, Ross did not seek to strike it out but focused on getting the matter on to trial.   That strategy was understandable, but it resulted in a difficult trial.  Those difficulties were aggravated by Terry's failure to comply with pre-trial directions so that his case was not clearly stated before trial.

2. In general terms, Ross admits the partnership with his parents and its dissolution in 1977.  He pleads that he and his parents remained registered proprietors of the Coronation Road property as joint tenants, and Thomas and Shirley 'agreed, acquiesced and consented' to Ross remaining a registered proprietor as a joint tenant.[29]

   [29] Defence [7(j)(iv)].

3. Ross pleads that he entered into an agreement with his parents regarding the use of the Coronation Road property, under which the new partnership between Thomas and Shirley would have the use of the Coronation Road property for a beef business, would pay all costs and expenses associated with it, would retain all income generated from that use, and would not be required to make any payment to Ross for that use.[30]  Ross pleads that between 1977 and 2010, he contributed labour and equipment, without payment, to the beef business carried on by his parents.[31]

   [30] Defence [13].

   [31] Defence [16(d)].

4. Ross alleges an oral agreement between Thomas, Shirley and Terry pursuant to which Terry provided labour and his equipment in return for the hay harvested from a single paddock on the Coronation Road property.[32]  Ross also pleads that particular contributions to the Coronation Road property on which Terry relies were for Terry's own benefit, and denies the extent of the contributions Terry alleges.  He pleads that the Coronation Road property was a 'hobby farm' for Thomas, and Thomas contributed most of the labour on it.[33]

   [32] Defence [20] ‑ [21].

   [33] Defence [22], [25] ‑ [26].

5. Ross pleads that he and Shirley were registered as joint proprietors of the Coronation Road property by survivorship on the death of Thomas, and that Shirley then transferred her entire share to him by transfer executed on 13 May 2010, the consideration being 'love and affection'.[34]  He pleads that from registration on 20 October 2010, he held the Coronation Road property free of any estate, interest or claim of Terry.[35]

   [34] Defence [29].

   [35] Defence [29B].

6. Ross pleads that, from about 8 July 1997, Terry was aware that his parents' wills did not bequeath the Coronation Road property to him.[36]

   [36] Defence [32].

7. Ross also denies that he had been told by any person that it was alleged he no longer held an interest in the Coronation Road property or that Terry had been promised an interest.[37]

   [37] Defence [35].

8. Ross pleads that he paid all costs and expenses of the Coronation Road property from about May 2010, when he became the sole owner, and that Terry did not contribute to the property after the death of Thomas.[38]

   [38] Defence [37] ‑ [39].

9. Ross pleads that the acts of his parents - including any statements or promises to Terry - did not sever the joint tenancy.[39]

   [39] Defence [19A].

The issues for determination

1. Despite the range of issues raised by the pleadings, the primary relief claimed by Terry turns on much more limited questions.  Terry must both establish his interest in the property by reason of his claim in estoppel, and defeat the interest of Ross.  These reasons will initially focus on the following issues:

   (1)following the dissolution of the partnership with his parents, did Ross hold his interest as joint tenant in the Coronation Road property in trust for his parents;

   (2)did Ross and Shirley make promises or representations to Terry that, on their death, the Coronation Road property would be his;

   (3)did Ross obtain title as registered proprietor of the Coronation Road property in 2010 by fraud on Shirley?

Background

1. This section sets out my findings of fact.  This first part of this section is largely not controversial.

2. From approximately February 1966 until approximately October 1977, Thomas, Shirley and Ross carried on a farming partnership known as TR & SGM & RM Woodley trading as Kongorong Farm.  Ross was born in December 1949, so was only 16 at the inception of the partnership.

3. In 1968, the partnership acquired the Coronation Road property, which was registered in the names of the three partners as joint tenants.  The property was used as part of the farming operations of the partnership.  It was not the only property used.

4. Two of the properties used in the partnership, the Hamel and Buller Road properties, were sold to Alcoa of Australia (WA) Limited on or about 7 July 1977.  The Hamel property had been in the name of Ross, and had previously been owned by his grandfather.  After Ross became the registered proprietor, his grandfather and grandmother continued to live on the property until about 1971, when Ross and his wife began to live there.

5. Cash from the sales of the two properties was distributed when the partnership was wound up, later in 1977.

6. In or about October 1977, the partnership was dissolved and there was a distribution of cash and other assets.  Terry contends that the distribution favoured Ross over his parents. 

7. After the sale of land to Alcoa, the partnership had two remaining items of real property:  the Coronation Road property, and a farming property known as Camarri (after the former owners).  Terry alleges that the partners also agreed a distribution of this remaining land, although that did not result in alteration of the registered title to the Coronation Road property.  There is no direct evidence of such an agreement, or its terms.

8. In November 1978, the Camarri property was transferred to Ross.  The transfer recites that the property had been held in trust for him.  There is no other documentary evidence of the trust.[40]

   [40] Terry alleges the trust was only made in 1978 in an attempt to avoid stamp duty and income tax:  ts 257, 421.

9. Ross remained on the title to the Coronation Road property as joint tenant with Thomas and Shirley.

10. These dealings remain a source of grievance to Terry, as they resulted in an uneven distribution of assets accumulated or contributed to by Thomas and Shirley during their lifetimes in favour of Ross compared to he and his siblings.

11. Following the dissolution of the partnership, Thomas and Shirley continued to use the Coronation Road property for breeding beef cattle, including hay production.  Ross was not part of this new operation although he, and other family members, contributed labour from time to time on a voluntary basis.

The alleged oral contract

1. Terry alleges an oral contract between Thomas and Shirley, on the one part, and Ross on the other, by which Ross was to regard the Camarri property as his and to enjoy quiet possession and ownership to the exclusion of his parents.  And Thomas and Shirley Woodley were to regard the Coronation Road property as theirs, and to enjoy quiet possession and ownership to the exclusion of Ross.[41]

   [41] Statement of claim [9(a)] ‑ [9(h)].

2. Terry alleges the agreement is evidenced by the later conduct of his parents and Ross, including conduct by Ross following the death of his father.[42]  It was apparent that, while pleaded as an oral contract, Terry was inferring the existence of the contract from that later conduct.  He had no evidence of any oral agreement.

   [42] Statement of claim [9.1] ‑ [9.17].

3. If the agreement alleged by Terry were established, its effect would be to sever the joint tenancy between Thomas, Shirley and Ross.  But I am not satisfied that there was an agreement.  The only evidence is the subsequent conduct and that is equivocal. 

4. In particular, Terry alleges that Ross did not have access to the Coronation Road property to conduct business on it, did not receive income from it, and did not pay or contribute towards the expenditure on the property or any capital improvements to it.

5. Joint owners do not have to jointly occupy the land, so long as each remains entitled to possession of the whole, along with any other co‑owner who chooses to occupy it.  The fact that Ross did not remain in occupation does not demonstrate that he had surrendered, by contract, his right to possession. 

6. At best, for the plaintiff's case, the parties' conduct shows an agreement by which, following the dissolution of the partnership, Thomas and Shirley retained occupation and use of the Coronation Road property for the purpose of their farming business, while Ross had both the title to and possession and use of Camarri.   It does not show that the parties, by agreement had severed the joint tenancy in the Coronation Road property.

7. Other evidence, which I accept, shows continuation of the joint tenancy.

8. First, on three occasions following the dissolution of the partnership, in 1988, 1994, and 2001, Ross borrowed money with the Coronation Road property as security.[43]  On each occasion, Thomas and Shirley signed the relevant security documents as joint tenants with Ross, acknowledging his title as joint tenant.

   [43] Exhibit 24 [135] ‑ [142]; exhibit 32, 27, 52 and 88.

9. The mortgages on the security of the Coronation Road property are also inconsistent with the further claim advanced by Terry at trial that his parents did not know the true position of the title to that property and were not aware  that Ross remained on the title.

10. Second, Ross gave evidence, which I accept, of an oral agreement with his parents consistent with the continuation of a joint tenancy.[44]

    [44] See exhibit 24 [126] ‑ [135].

The events following the death of Thomas Woodley

1. Thomas died in January 2010.  His entire estate was left to Shirley.  She was also the executor of his will.

2. Following the death of Thomas, Shirley was represented by the firm of solicitors, Nicholson Clement.  Relevantly, through Nicholson Clement, she applied for probate of Thomas' will.  Survivorship applications for the Coronation Road property (jointly with Ross) and another property were prepared.

3. Terry pleaded that Shirley instructed Nicholson Clement that Ross was to surrender his share in the Coronation Road property.  Terry relied on a draft, unsigned statutory declaration in the Nicholson Clement file in which Shirley described Coronation Road property as owned jointly with Thomas.[45]  I draw no inference from such an unsigned draft document.  Shirley and Ross jointly signed a survivorship application for the Coronation Road property.  In the statutory declaration in support of the application, they described themselves as co-registered proprietors with Thomas.[46]

   [45] Exhibit 33, 129, 132 ‑ 133.

   [46] Exhibit 32, 250 - 252.

4. Terry also relies on a valuation of the Coronation Road property as supporting the inference that Ross (who obtained the valuation) believed the property was part of the estate of Thomas.  The alternative, equally or more likely, explanation is that Ross thought his mother had a two thirds interest in the property which would go into her estate.[47]

   [47] Exhibit 24 [494] ‑ [495].

5. In any event, on 20 October 2010, Ross was registered as the sole proprietor of the Coronation Road property.  His title does not depend upon the earlier dealings with or ownership of the land.

The representations and the plaintiff's contribution to the Coronation Road property

Approach to the evidence

1. There are many cases where judges have spoken of the need to carefully scrutinise evidence of conversations involving a person now deceased.[48]  There is no rule that such evidence must be corroborated.  But when regard is had to a range of factors ‑ the witness may be endeavouring to remember conversations some years earlier, the other party or parties to the conversation are not available, the witness may now be attaching significance to what were casual remarks, the witness may have an interest in their version of the conversation, there is a risk of reconstruction ‑ the court will consider carefully whether it is satisfied on such testimony if there is no other contemporaneous material of the conversation.

   [48] Hallen J refers to many of them in Blacket v Barnett [2017] NSWSC 1032 [243] ‑ [258].

2. Terry's case for an estoppel relies on his testimony of conversations with his parents.  He pleads in par 13:

   From approximately 1992 until 2010 Thomas Woodley and Shirley Woodley regularly and on numerous occasions told the Plaintiff that the Coronation Road Property would be his, when they passed away.

   Particulars

   The discussions to that effect took place:

   (a)on numerous occasions during morning tea in the hay shed of the Coronation Road Property; and

   (b)on numerous occasions over dinner at the kitchen table of the home of Thomas Woodley and Shirley Woodley.

3. Terry later added further particulars, stating these conversations took place on numerous occasions and at other places.

4. Terry also alleges that, between 1992 and 2010, he contributed labour and made financial contributions to maintaining and improving the Coronation Road property, and that his parents encouraged him to make those contributions and encouraged him to expand the ambit of farming operations conducted on the Coronation Road property by encouraging him to purchase a nearby property to be used in conjunction with the Coronation Road property.[49]

The evidence

[49] Statement of claim [15(b)].

1. In his witness statement, Terry said that on numerous occasions his parents told him the Coronation Road property would be his when they passed away.  On objection from the defendant to the conclusionary form of the witness statement, Terry was permitted to give supplementary oral evidence as to what his parents said.  I told him that he needed, as far as possible, to tell the court what was said or the effect of what was said.[50]

   [50] ts 268, 376, 381.

2. Terry said in evidence:

   Repetitively, he used the words, 'You only get out of something what you put into it.'  So I understood that to mean that if I continued to contribute to the property, I would get the property.  My father also said to me and asked me what I was going to do with the property in the future.  And he asked me the practices that I would continue to use on the property in respect of livestock and hay.

   … These were said to me from 1992 right up until his death.  They were normally said to me when we were at the Coronation Road property when we were working together or when we were sitting in the hay shed having morning tea, afternoon tea or lunch, and also at my parents' residence at 6 Paterson Road, Waroona, at the kitchen table. [51]

   [51] ts 381 ‑ 382.

3. Still later, in his brief supplementary oral evidence, Terry said:

   Again, my father on many occasions used the expression 'You only get out of something what you put into it' and this was said to me every time it came up about equipment or a new farming practice that involved the purchase of another piece of equipment or adopting a different mode of farming or practice.  I particularly remember the words, 'You only get out of something what you put into it' because I would play those words back to him, say them to my father when we adopted a new method or approach, such as the red-legged earth mite spraying and it worked, and we had good results.  Then I would look him in the face and say, 'Well, you only get out of it what you put into it'.[52]

   [52] ts 383.

4. Terry said that after he bought a nearby farm in 2004, 'all agreed' that it would be a good idea to see if he could buy the farm that separated the two properties, as 'that would then make more than adequate farming area that I could run a proper commercial farming practice on and make a living from'.[53]

   [53] ts 384 ‑ 385.

5. Terry said that he did not push for any paperwork or a transfer.  There is no contemporaneous document that records or even refers to the promises or representations Terry relies on.

The defendant's case

1. Ross submits that Terry has adduced no sufficient evidence of words said to found an estoppel; that is, his evidence of what was said would not reasonably be understood as a promise that the Coronation Road property would be left to Terry by will.  In my opinion, there is substance in that contention.

Findings

1. I take into account that Terry testified that the words were said during work on the farm, during breaks in work, and at his parents' residence, and that they were repeated.

2. I also take into account that, while the extent of his contribution is disputed, it is not disputed that Terry contributed to the Coronation Road property over a prolonged period.

3. I accept Terry's evidence that Thomas told him 'you get out of it what you put into it'.  I am not satisfied what other words were said and, more relevantly, that what was said would reasonably bear the construction that Terry seeks to put on it.

4. There were three other matters which, in my opinion, seriously weaken Terry's case that his parents promised the Coronation Road property to him on their death. 

5. First, Terry was aware of the terms of his parents' wills from when they made their wills in 1997 and knew that the Coronation Road property was not left to him in either will. [54]  

   [54] ts 478 ‑ 480.

6. Second, aware that the wills did not leave the Coronation Road property to him, Terry said and did nothing.  In evidence he explained his inaction this way:

   It would have been great if someone had told them it's in joint names.  It would have been great if they had got it fixed up and it would have been great if they had recorded in the will ‑ yes ‑ it was going to get left to Terry but that's only five years after the first initial promises, so maybe Dad was still wary ‑ Mum was still a little bit wary or something.  Maybe they were waiting to see if it pans out in another five years and change their wills or update them.[55]

   [55] ts 483.

7. The explanation involves a degree of speculation about his parents' intention.  But it is not consistent with Terry's assertion that he knew that the property had been clearly promised to him. 

1. Third, Terry only asserted that his parents had promised him the farm for the first time in February 2013, as the basis for supporting a caveat on the Coronation Road property. Before that he had never told his siblings that his parents had promised him the property.[56]  He did not raise it at the reading of Shirley's will - he said that was because Ross scrunched up a bit of paper and threw it at him.[57]  He did not raise it at a later meeting of the executors, held at the offices of the lawyers for the estate, on 20 October 2010.[58] 

   [56] ts 493 ‑ 495.

   [57] ts 463 ‑ 464.

   [58] ts 466.

2. Terry's failure to mention the promises is in the context where he had a lot to say about his mother's estate and the property in it, and the conduct of this brothers.  Even if he regarded the atmosphere at the reading of the will or the executors' meeting as unfavourable, he did not say anything about his parents' promises to the estate solicitors.  He did not mention the promises in writing.

3. After the reading of the will, Terry wrote a series of 'open letters' to his siblings in which he expressed his views on several matters relating to the conduct of his brothers and the proper management of the estate.  In particular, he referred to a possible deed of family arrangement, which 'must include lot 495, Coronation Road, Waroona, and both 14 and 16 Fitzpatrick Street, Waroona'.[59]  Terry prepared a spreadsheet of the estate's assets and liabilities, to be 'used as a basis for the asset and liabilities statement for probate and the distribution of assets pertaining to the estate of my parents'.[60]  In it, Terry listed the Coronation Road property as an asset of his parents and made no mention of his claim to it.   

   [59] ts 470.  The Fitzpatrick Street properties were registered to Wayne.

   [60] ts 470.

4. Terry's letters to his siblings continued into 2013.  He told them (and the details in the letters bear it out) that he was exhaustively researching documents left by his parents.  Terry's complaints and accusations are numerous and his tone and language unpleasant.  In all of it, he says nothing about his parents making any promise to him.

5. Terry did not only write to his brothers.  In a letter to Nicholson Clements dated 7 February 2012, Terry referred to the importance of the income producing assets of the estate, including the Coronation Road property, to the testamentary trust created under the wills.[61]  His explanation for including the Coronation Road property as an estate asset, rather than his, was that he did not give enough thought to the content of his letters.[62]

   [61] Exhibit 32, 328.

   [62] ts 480.

6. Terry filed an affidavit in support of a grant of probate of Shirley's estate dated 26 November 2012.  In a long and often detailed affidavit, Terry deposed to his involvement in the running and management of the Coronation Road property, including the use of his machinery on that property; he said that he saw his parents frequently; and he said that he had attended to his parents' tax and accounting affairs for the past 15 or more years.[63]  Terry referred again to his puzzlement at the testamentary trust created by the wills of his parents, when there were no income earning assets in the estate.  In all of that, he did not mention any promise to him.

   [63] Exhibit 32, 395 [25], 403 [67], [73].

7. Terry agreed that, before placing a caveat on the Coronation Road property, he did not ever claim to the lawyers, or to other members of his family, that his parents had promised it to him.[64]  In explanation, he said that he did not then know about proprietary or promissory estoppel.  Even if he did not know his legal position, in the context of his many complaints, I believe that Terry would have told his brothers or the lawyers if such an important promise had been made.

   [64] ts 472.

8. In assessing Terry's evidence, I also have regard to my overall impression from his evidence.

9. First, he repeatedly sought to attribute responsibility for his failure to be prepared for trial and for omissions in his witness statement to his former solicitors.  Having regard, in particular, to his affidavit of 23 May 2018, I do not believe the fault lay with his solicitors.

10. Second, there were several occasions where Terry testified to what he believed must have happened, when he had no actual knowledge of the facts.  I do not accept it as credible that he listened to, understood, and accurately remembered things from his childhood, such as what was said around the kitchen table about a sale of land to Alcoa in 1977, when he was 11 years old.[65]  Another example is the purchase of the Camarri property and its transfer to Ross.  Terry queried the date of the contract and also the effect of it, saying 'everything that I saw or heard led me to believe that the property was solely my mother and father's'.[66]  The property was bought when Terry was four years old.  The transfer to Ross recited that it had been held in trust for Ross.  Terry's 'evidence' about the transaction is no more than his reconstruction in terms unfavourable to Ross.

    [65] ts 410 ‑ 411.

    [66] ts 413.

11. Similarly, his evidence about the partnership dissolution between Ross and his parents and the oral contract regarding the Coronation Road property, was the result of his inferences or deductions ‑ more often speculation ‑ from documents created many years before.  Terry's reconstruction is tainted by his strong feeling that Ross has been unfairly favoured. 

12. Third, I accept that Terry said and wrote things in the context of a dispute with his brothers, and some of what he said may have been intended primarily to goad them.  But he repeatedly threatened using legal action to delay the finalisation of the estate.  For example:

    Your day of reckoning has come boys.  It will come with a vengeance, and I will bury you in paperwork and this estate will go nowhere for years.  I have the financial, technical and professional resources at my disposal.[67]

    When I close my door it stays closed.  It will be on for young and old and I will pursue all matters to my complete satisfaction.

    For those of you who underestimate my abilities and resolve, do so at their own peril.  Do not blame it on me.  You people have made your own bed and you must be prepared to sleep in it.  Go and have a little team meeting.

    All matters could have been settled a year ago but this continual denial of the factual events and bullshitting has only hurt each of you.  Time is on my side.  After all, I am the baby of the family.[68]

    If your client wants to continue his stance, then I can get a caveat just like that.  Nothing will go nowhere for years.  This whole matter can get as nasty and prolonged as your client desires.  I can accommodate your client's every desires in that respect.[69]

    [67] Email to his brothers, 2 November 2011, exhibit 32, 308

    [68] Document entitled, 'Brief Update to Siblings', dated 9 October 2012, exhibit 32, 377.

    [69] ts 492 - letter to solicitors for Wayne, November 2012.

13. Fourth, Terry repeatedly demonstrated his animosity to his brothers.  His open letters are personal and spiteful.  He used what he knew (or said he knew) as a tax accountant to threaten them.  On one occasion he wrote to Ross that he had issued 'the first of several subpoenas' so as to be sure he had the correct story before handing the matter over to the relevant authorities for prosecution.[70]  At some time, he did report his brother.[71]

    [70] Exhibit 32, 691.

    [71] ts 489 ‑ 490.

14. Finally, I note that Terry has now lodged caveats against three other properties in Waroona, previously owned by his parents, again on the basis that they were promised to him.  Those caveats were only lodged in April 2018.  When asked why he had not acted earlier, despite having participated in two Supreme Court trials, he simply said the penny did not drop earlier.[72]  There is no evidence that he has previously claimed those properties.

    [72] ts 497.

15. On these findings, it is unnecessary to consider in any detail the other elements of a claim in proprietary estoppel.[73]  The claim is based on representations or promises which have not been proved.  I will, however, consider Terry's claim that Ross obtained title to the Coronation Road property by fraud.

    [73] See Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 [35], [151] ‑ [153], Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [2] ‑ [10]; Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11; Low v Bouverie 1891] 3 Ch 82, 106, 113.

Fraud

1. Terry did not plead that Shirley lacked legal capacity.  But he expressed doubts about her capacity, in the context of the allegation of fraud by Ross. 

2. There was no evidence, however, sufficient to cast doubt on the factual presumption that Shirley was, at the time of the transfer to Ross (and up to her death) capable of managing her affairs.[74]

   [74] See Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 [36].

3. I do, however, consider that it is appropriate to take into account that Shirley was 82 years old, recently widowed, and apparently being assisted by her children and relying to some extent on Ross as her eldest child.

4. The effect of the registration of Ross' title to the Coronation Road property in October 2010 was to extinguish all prior unregistered estates or interests which, but for that registration, would have conflicted with or encumbered his estate or interest, unless the prior unregistered estate or interest falls within the exceptions to indefeasibility of title mentioned in Transfer of Land Act 1893 (WA) s 68.[75]  An important aspect of Terry's case is his contention that Ross did not obtain indefeasible title because his title was obtained by fraud. 

   [75] Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407, 418. Under s 68(1) of the Transfer of Land Act:

   Notwithstanding the existence in any other person of any estate or interest whether derived by grant or transfer of the fee simple from the Crown or otherwise which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land; but absolutely free from all other encumbrances whatsoever except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.

5. The provisions relating to indefeasibility and the limited exceptions to that principle in the Transfer of Land Act are not materially different from those in the Real Property Act 1900 (NSW), which were considered by the High Court in Cassegrain v Gerard Cassegrain & Co Pty Ltd. [76]  To come within the fraud exception, actual fraud must be brought home to the person whose title is impeached.[77]  Fraud for these purposes means 'something more than mere disregard of rights of which the person sought to be affected had notice and as importing something in the nature of personal dishonesty or moral turpitude'.[78]  The relevant fraud or dishonesty is 'dishonesty on the part of the registered proprietor in securing his registration as proprietor'.[79]  Merely to take a transfer with notice that it will defeat an existing unregistered interest is not, without more, fraud.[80]

   [76] Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2; (2015) 254 CLR 425 [16].

   [77] Cassegrain v Gerard Cassegrain & Co Pty Ltd [53].

   [78] Stuart v Kingston [1923] HCA 17; 32 CLR 309, 329; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 [192].

   [79] Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604, 614.

   [80] Bahr v Nicolay [No 2], (630) (Wilson & Toohey JJ), (653) (Brennan J).

6. Fraud must be pleaded specifically and particulars of the fraud must be exactly given.[81]  

   [81] Banque Commerciale SA, En liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279.

7. The plea of fraud is found in statement of claim, par 35. That plea was introduced in November 2014:

   The Defendant committed fraud on Shirley Woodley by creating a false belief as to the true nature of the transfer and surrounding events.

8. I have earlier referred to the particulars of that allegation. 

9. On day three of the trial, but before evidence was led, I referred to the vagueness of the fraud allegation and asked Terry to say what the fraud allegation was, and what evidence there was regarding it.[82]  He said, in effect, that he sought to prove that Ross fraudulently represented to his mother that the transfer of the half interest in the land was to her, not a transfer by her.[83]  That was not the case pleaded.  After hearing all of the evidence and submissions, it is still not possible to confidently state what fraud Terry alleges. 

   [82] ts 293.

   [83] ts 294.

10. When asked to identify the evidence on which he relied to support the allegation that Ross had committed fraud, Terry placed considerable weight on a document referred to as the 'I Shirley Woodley' document which began

    I Shirley Woodley

    Wish to have my and shared assets dealt with in the following manner.[84]

    [84] Exhibit 2, 1493.

11. The document provided for Ross to surrender the Coronation Road property, for Wayne to sell two blocks in Waroona, and for cash and land to be combined and shared between Ross, Ann, Raymond and Terry as agreed by them.

12. Terry pleaded, based on this document, that:

    (1)on or before 15 February 2010, Ross knew and understood that he must surrender his 'share' in the Coronation Road property;

    (2)Ross' 'understanding, knowledge and intent' was that he was a tenant in common in the Coronation Road property since about 1977 and was to surrender his share;

    (3)due to Ross' financial distress, 'he then engaged in improper, unconscionable dealing and knowingly took advantage of Shirley Woodley, (terminally ill and heavily medicated recent widow) exerting undue influence to fraudulently effect a 50% transfer from Shirley Woodley to satisfy his creditors'.[85]

    [85] Statement of claim [16(d), (e), and (f)].

13. Ross pleaded that Wayne wrote the document and that Ross neither signed it nor agreed to its contents. [86]  His evidence was that he and Wayne discussed breaking up the assets between the siblings, which would include Ross putting in the Coronation Road property and Wayne the two units in Waroona.[87]

    It was just something that we were doodling on a bit of paper, trying to come up with some way of … letting everybody come out of it somewhere near equal.[88]

    [86] Defence [28].

    [87] ts 773.

    [88] ts 773.

14. Ross also said that Shirley was not present when the document was made and that he did not speak to her about it. 

15. Wayne's evidence was that he prepared the document.  Wayne said the document 'was just suggestions between [Ross] and myself'.[89]  The intent of the document was that Ross and Wayne would surrender property to the estate so that it could go 'into the pot for redistribution'.[90]  He said:

    I never talked to my mother, not once, about that document.  My mother did not, to the best of my knowledge, even know that document existed.  And, you know, it was never, ever my intention that she would know at that stage of writing the document.[91]

    [89] ts 927.

    [90] ts 928.

    [91] ts 927.

16. Ray said that he had not seen the document before.[92]

    [92] ts 883 - 884.

17. Terry attempted to maintain that Shirley was aware of the content of the document, but there was no evidence to support that assertion.  I am not satisfied Shirley was ever aware of it.  I am satisfied that the document was prepared by Wayne, in consultation with Ross, with the intention to investigate making a family arrangement to equalise the benefit of their parents' property among the Woodley children.  The document does not evidence acknowledgment by either of them that the properties registered in their names were not held by them absolutely.  Rather, any equalisation of property accumulated by their parents could only be effected by using property that did not fall into Shirley's estate.

18. The distribution sketched out in the 'I Shirley Woodley' document did not proceed.  The family did not agree on any other distribution.  It is not necessary to go into why.

19. Because I find that Shirley was not aware of the 'I Shirley Woodley' document, and I accept the evidence of Ross and Wayne about why it was made, that document is not capable of supporting the allegation of fraud on which Terry wished to rely.

20. In support of the fraud allegation, Terry referred also to the coincidence that Ross listed a property he owned for sale on the same day that he attended a meeting at Nicholson Clement with his mother to discuss land transactions.[93]  He argued that was a clear indication that Ross knew that he was not going to receive the Coronation Road property, with the inference to be drawn that he then deceived Shirley to ensure that he did.[94] This is one example where serious accusations were based on the flimsiest material.  The evidence cannot support the conclusion for which Terry argued.

    [93] ts 307.

    [94] ts 310.

21. Terry relied on some unsigned and incomplete drafts of transfer of land documents from the files of Nicholson Clement.[95]  They prove nothing.

    [95] ts 310; exhibit 33, 129, 132 ‑ 133.

22. Terry also referred to his mother's age and that she had recently suffered the loss of her husband.  He did not, however, lead any medical evidence or any evidence which would lead me to doubt that Shirley remained legally capable to the time of her death.

23. Each element of a cause of action must be proved to the reasonable satisfaction of the court; the court 'must feel an actual persuasion of its occurrence or existence'.[96]  The court will take into account the nature and gravity of the matters alleged in determining factual issues on the balance of probabilities.

    [96] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712.

24. The evidence relied upon by Terry in support of the allegation of fraud is not persuasive.

25. In summary, the fraud case was never properly stated.  Terry wanted to treat the trial as an inquiry in which he could explore lines of questioning.  He had no cogent evidence to support the allegation of fraud he had pleaded, and no reasonable argument to amend his case to one that was supported by evidence.

26. I reject the allegation of fraud. 

27. The result is that, from October 2010, Ross held title to the Coronation Road property as registered proprietor free from any interest or claim by Terry.

Conclusion on the Coronation Road property

1. Those findings are sufficient to determine Terry's claim that he has an interest in the Coronation Road property.  He has not established circumstances which led to severance of the joint tenancy between Thomas, Shirley and Ross, before the death of Thomas and the transfer by Shirley.  He has not proved the promises or representations on which he relies to found his claim of estoppel.  And he has adduced no evidence that supports a finding of fraud.

2. The question of the sale of the Coronation Road property, and whether it was sold at below its value, does not arise.

The claims regarding cattle and hay

1. Terry also pleaded claims for damages due to the estate, and for personal compensation for the sale of his cattle not accounted for, for the sale of hay crop not accounted for, and for 'the sale or dealing with machinery, plant and equipment, fixtures and fittings removed from the Coronation Road property'.

2. A beneficiary may bring a derivative proceeding against a third party in special circumstances, including where the trustees fail to perform their duty to the beneficiaries to protect the trust estate or the interests of the beneficiaries.[97]  This principle might extend to the objects of a discretionary trust.[98]

   [97] Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; (2004) 216 CLR 109 [55] ‑ [56]; Roberts v Gill & Co [2010] UKSC 22; [2011] 1 AC 240.

   [98] Lewis v Condon [2013] NSWCA 204; (2013) 85 NSWLR 99; El Sayed v El Hawach [2015] NSWCA 26; (2015) 88 NSWLR 214 [45] ‑ [54].

1. Special circumstances include fraud on the part of the trustee, or collusion between the trustee and the third party, or the insolvency of the trustee.  These, however, are merely examples of special circumstances:  'the underlying question is whether the circumstances are sufficiently special to make it just for the beneficiary to have the remedy'.[99]  Terry has not pleaded or proved any special circumstances or any basis on which he may claim compensation on behalf of the estate. 

   [99] Roberts v Gill & Co [46].

2. Ross and Ray are the executors of the estate.  For the purposes of these proceedings, Ray has acted alone in instructing solicitors to represent the estate and to provide advice solely to him.[100]  He has received formal written advice and oral advice.  Ray's unchallenged evidence was that he formed the view that the estate should not make a claim in relation to any interest in the Coronation Road property, or any cattle, hay or machinery.[101]  He gave reasons for that view, including findings made in other proceedings between the Woodley brothers, the size of the estate and the value of realisable assets, and the risk of costs orders.

   [100] Witness statement of Ray Woodley [99].

   [101] Witness statement of Ray Woodley [104].

3. Having regard to Ray's evidence, I am not satisfied that, even had he pleaded them, the circumstances justify an action by Terry on behalf of the estate.

4. Terry has also pleaded a personal claim for cattle, hay and machinery.  The statement of claim does not, however, differentiate between property which Terry owned in his own right, and property of the estate or affixed to the land.  It refers to property, including cattle, as 'arising from the Coronation Road property'.[102] 

   [102] Statement of claim [35].

5. The evidence does not enable me to find what property was owned by the estate and what (if any) by Terry.  It does not establish a claim for loss of property owned by Terry.

6. Those claims are not proved.

Conclusion

1. The action will be dismissed.  The funds currently held in trust should be released to Ross.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON

19 OCTOBER 2018