King v Abdel-Malik[2018] QDC 163

DISTRICT COURT OF QUEENSLAND

Introduction and Pleadings

1. [1]
   In this matter the plaintiff, who is the first, third and fourth defendant’s father, seeks recovery of possession of land at 110-124 Dunrad Road, Peak Crossing (also 120 Mt Flinders Road, Peak Crossing and hereafter “the land”) from the first and second defendants and consequential declarations and injunctions, together with damages for loss of possession. The second defendant is the first defendant’s de-facto partner. They currently live together on the land which is registered in the name of the plaintiff. The third and fourth defendants, who are the first defendant’s brothers, were added as parties during the trial but the plaintiff seeks no orders against them.

2. [2]
   A further Amended Defence and Counterclaim joining the third and fourth Defendants as parties was filed on 21 June 2018, being the 4^th day of the trial, but did not amend the orders sought in the earlier amended pleading. The defendants oppose the orders sought and seek the following relief:

1. An order that the plaintiff is estopped from denying the first, third and fourth defendants the benefit of the land.

2. A declaration that the plaintiff holds his legal ownership of the land on trust for the benefit of the first defendant as well as the third and fourth defendants.

3. A declaration that the plaintiff grant the defendants a licence to occupy the land.

4. In the alternative, the plaintiff pay the defendants equitable compensation in the sum of $100,000 based on a claim for equitable estoppel.

5. In the further alternative, a declaration that the defendants have an equitable interest in the land to the extent of $100,000 (plus interest) and the plaintiff “holds this equitable interest in the land on trust to pay to the defendants this amount”.

6. In the further alternative, a declaration that there be an equitable charge in favour of the defendants for the sum of $100,000 (plus interest) over the land.

7. Interest on the monetary sums payable by the plaintiff pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

8. Costs.

3. [3]
   It is not disputed that the plaintiff purchased the land and requested it in his name in about 1990. It is also not disputed that after the marital separation, in about 1997, of the plaintiff and his wife, now known as Julie Trotter, the plaintiff was the sole legal owner of the land. Ms Trotter is of course the mother of the three siblings. The plaintiff alleges that in about 2014 the first and second defendants entered into possession of the land. He alleges that after his return in 2016 from the USA, where he had lived from 1999, the first and second defendants have wrongfully remained in possession of the land despite his demand for exclusive possession.

4. [4]
   The first and second defendants alleged at paragraph [12] in their original Defence and Counterclaim filed on 22 December 2016, that in or around August 1997 the plaintiff orally represented to Julie Trotter that he would give the land to her for her benefit and the benefit of their three children (being the first, third and fourth defendants). It should be noted that neither Julie Trotter nor the third and fourth defendants were then parties to the action.

5. [5]
   It was also alleged in the original Defence and Counterclaim that from “around the time” of that representation in about August 1997, Julie Trotter and the children resided at the land. This was not so and appears, I conclude, to have been pleaded in error. No one in evidence made such an assertion. Documentation proposed by the original defendants at about that time did not make such an assertion. Further, it is alleged that in June 2013 the original defendants (the first and second defendants) wrote to the plaintiff about commencing work so as to improve the land and that the plaintiff wrote back to confirm that he was content for them to do so. That was an issue in dispute at the trial. Further and Better Particulars were provided of that correspondence on 14 June 2018. It was then said that the letters were in fact electronic messages. Those messages were item 38 of Exhibit 1 at the trial. The first defendant in particular was cross-examined about them. It is also alleged by the defendants that from June 2013 the defendants performed or had performed improvements on the land and buildings thereon to the value of $100,000, informing the plaintiff from time to time of such improvements. It is said that the defendants undertook that work in reliance on the plaintiff’s oral representation and his conduct, and that it would be unconscionable for the plaintiff to resile from such representations.

6. [6]
   The counterclaim is based on alternate claims for equitable estoppel and also failed joint endeavour. The claim in relation to joint endeavour was based on the facts alleged in the defence which I have referred to. The defendants allege the joint endeavour was for the material benefit of the parties in that the defendants would be able to reside at the land and would maintain and improve it and the plaintiff could also reside there, having the benefit of the plaintiffs maintenance and improvements.

7. [7]
   The plaintiff’s reply put in issue the factual basis of the defendants’ counter-claim. In particular, the plaintiff:

1. (i)
   denies representing to his ex-wife in about August 1997 that he would give her the land for the benefit of her and the three children;

2. (ii)
   denies she and the children resided on the land as alleged or that they had the benefit of the land from 1997;

3. (iii)
   denies that his residing away from Australia from 1999 until early 2016 and allowing his ex-wife and children to reside on the land from about March 1997 (which fact was in any case denied and was not asserted at trial) could, as a matter of law, amount to a representation that the land was being and would be held by him for the benefit of his ex-wife and their three children;

4. (iv)
   denies the first and second defendants wrote to him in June 2013 about commencing work so as to improve the land and denies writing back to confirm he was content for them to do so. He also denied that they carried out work as alleged to the value of $100,000 or that they informed him of the status of that work from time to time;

5. (v)
   denies that the defendants undertook such work in reliance on the alleged oral representation of August 1997, or on the matters alleged in sub-para (iv) hereof, or otherwise and in any case denies the defendants would suffer detriment if they were denied the right to live on the land;

6. (vi)
   denies he holds the land on constructive trust for the benefit of the defendants or that he ought be required to pay equitable compensation in the order of $100,000;

7. (vii)
   finally, denies the defendants’ alternate remedy based on the alleged failed joint endeavour.

8. [8]
   At the commencement of the trial the defendants applied to amend the Defence and Counterclaim pursuant to r 380 of the Uniform Civil Procedure Rules 1999.

9. [9]
   I have said already that a part of the defendant’s case was that in August 1997 the plaintiff had represented to his ex-wife that he held the land registered in his name, for the benefit of her and their three children. It was alleged that subsequently Julie Trotter told the first defendant of that representation and of its effect, and that the plaintiff allowed Ms Trotter and the children to live on the land after then. It was not alleged in the original Defence and Counterclaim that at any time the plaintiff had made any direct representation to the defendants, or to any of them, concerning his holding the land for the benefit of his children.

10. [10]
    The defendants’ proposed amendments to their pleading made at the start of the trial were to the following effect;

1. (a)
   paragraph 12 of the statement of claim was sought to be amended to plead that the representation of the plaintiff to Julie Trotter in August 1997 was not that he held the land for her for the benefit of her and the children, but that he held it for the benefit of their children;

2. (b)
   paragraph 13 of the statement of claim was sought to be amended to plead that in or about December 2009 the plaintiff represented to the first defendant, and to her brother Amir Abdel-Malik (who later became the third defendant), that he held the land for the benefit of his children.

11. [11]
    The plaintiff objected to the proposed amendments. Counsel for the plaintiffs did not suggest that if the amendment was allowed he would have trouble leading evidence about the events of August 1997 or December 2009 (which he said, was in fact December 2010, when the plaintiff said he visited Australia from the United States where he was then living). It was not suggested that anyone other than the first defendant and her brother, who were both to be called to give evidence on behalf of the defendants, and the plaintiff were parties to this December conversation, although the brother’s then girlfriend was also present.

12. [12]
    Rather, counsel for the plaintiff submitted that to allow the amendments would unfairly prejudice the plaintiff by making the case – which counsel accepted was largely a credit one – a more difficult one for the plaintiff. He submitted the plaintiff had prepared the case on a different basis than that which was now to be alleged.

13. [13]
    In determining to allow the amendments I was influenced by the fact that:

1. The amendments did not change the number of witnesses or likely duration of the trial;

2. The plaintiff was not prejudiced by the unavailability of witnesses, or by difficulty in procuring evidence about the events of 1997 or December 2009 (or 2010);

3. The plaintiff had become aware of the factual assertion that he hold the land for the benefit of the children as a result of affidavits sworn to that effect, filed in support of an application for domestic violence orders on 7 February 2017. This followed an altercation between the plaintiff and the original defendants at the property in September 2016. In February 2017 the first defendant had sworn to events occurring in the December meeting as the defendants alleged in the proposed amended pleading.  I note this affidavit was sworn only 6 weeks after the filing of the original Defence and Counterclaim on 22 December 2016. Thus whilst the proposed allegation had not previously been made in the proceedings, the plaintiff was aware of the first defendants assertion to that effect from at least February 2017.

14. [14]
    I concluded that it was appropriate to allow the amendments. The commencement of the trial was not delayed by it. It was appropriate that the real issues between the parties should be ventilated. I also pointed out, during the course of argument, that the changed allegations in respect of the conversation of August 1997 concerning the nature of the plaintiff’s alleged representation to his ex-wife might itself operate in the plaintiff’s favour by perhaps undermining the creditworthiness of Ms Trotter.

Credit Issues

15. [15]
    Resolution of the matter necessarily involves significant questions of credit. The plaintiff emphatically denies representing to his ex-wife, Julie Trotter, in August 1997 that the land was “for the children” or words to that effect. He similarly denies telling the first and third defendants during a visit to the land over Christmas 2010 (or 2009) that the land was being held by him for the three siblings. He also emphatically denies knowing, until after he told the first defendant that he was returning to Australia, that the original defendants were living on the property and had done so for some time.

16. [16]
    Each of the first and third defendants and Julie Trotter gave evidence of such conversations.

17. [17]
    In part the credit issue is resolved by consideration of the contrasting demeanour and manner of giving evidence of the witnesses, especially the plaintiff and the first defendant. It is also relevant, in considering the credit issue, to have regard to what I find are the facts surrounding the defendants’ use and occupation of the land in recent years and in particular what the plaintiff may have known of their use of the land both when he was in the United States, up until late 2015 or early 2016, and after his return to Australia in about March 2016.

18. [18]
    In trials I am generally reluctant to give great weight to demeanour in assessing credit. I am conscious of the words of Lord Pearce in Onassis and Calogeropoulos v Vergottis (1968) 2 Lloyd’s Rep 403 at 431, approved in Withyman v NSW [2013] NSWCA 10 at [65], as follows:

"Credibility" involves wider problems than mere "demeanor" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." (My underlining)

19. [19]
    In this case I was struck by the adverse impression the plaintiff formed upon me when he gave evidence and, in comparison, the generally good impression the first defendant created.

20. [20]
    The plaintiff was in my view both disingenuous and evasive in his evidence. As an example, he had prior to 8 October 2015 (as I find) been sent a text message by the first defendant. There were a number of attached photos. The text and photos are at page 345-349 of Exhibit 1. The text was in these terms;

“Thank you so much for giving Jamie and I a start.  I love you and really appreciate it.  These are our first eggs from our chooks.  We found them this morning, so excited.  And thought you would like to see.  Love you.”

Jamie is of course the second defendant. The photos are of the subject property and the buildings and other improvements including the chook pen (no doubt from which the first egg was retrieved) the defendants say they had done to the property.  Whilst not high quality photos, the images in the context of the text itself, would have left the plaintiff in no doubt that the original defendants (“Jamie and I”) were then living for at least some of the time on the property and carrying out improvements to it. The reference to being given “a start” is in my view supportive of the defendant’s case and not consistent with the plaintiff’s assertion he was only giving them a place to live, temporarily, rent free. To do so would, I think, in circumstances where the defendants expended significant time and effort to make the place habitable not properly be described as “giving (them) a start”.  I accept the first defendant’s evidence that they were at that time in fact living there full-time. 

21. [21]
    More importantly, given what I find the plaintiff observed when he visited the property in December 2010, he must have known they had done significant work both cleaning up the sheds and surrounding area but also carrying out building work. As an example, the top photo of page 347 shows a carport they had constructed.

22. [22]
    Subsequently on about 20 November 2015 the first defendant sent to the plaintiff a photo of a bobcat in a rural setting and later on about 10 December a photo of a water tank on a truck. Whilst there was no text accompanying those photos it defies belief that the plaintiff did not know the photos indicated that the bobcat was being used to effect work on the property and that the defendants were installing the tank on the property.

23. [23]
    Despite these very obvious conclusions, which the plaintiff must, I find, have made he denied that when giving evidence. He said (T2-33 l 28 ff) that the photo of the bobcat was just that and "I don’t even know whether this is on my property”. He later said “it could be anywhere”. At T2-34 l 29 ff he was asked directly;

“What I’m asking you is when you got a photo from your daughter, with a bobcat on a property somewhere and a water tank on the truck somewhere, did it occur to you that they were doing work on the property with the bobcat and either installing or moving a water tank?...No.”

24. [24]
    I do not accept his answer was truthful.

25. [25]
    Similarly I do not accept what he said he saw about the condition of the property during the Christmas visit to the land, which I conclude, consistent with his evidence, was in 2010 rather than 2009 as the first defendant said. I think that despite the unsatisfactory nature of his evidence he was likely to recall the year of his only visit to Australia between 1999 and 2016. Nothing, in any case, turns on that finding.

26. [26]
    The top photo at page 315B of exhibit 1 is of the entrance to the land on the western boundary, taken recently. It accords with what I saw during a visit to the land conducted early on the morning of the second day of the trial. I shall refer to this shortly. The two photos at page 315A of the same Exhibit are, the first defendant said (and I accept) of the land from the same gate, after they had done work to clear a track to gain access to the sheds at the rear of the property. It is to be remembered that no-one had lived on the land, or visited it regularly, from at least when the plaintiff went to the United States in 1999. That it was overgrown as shown in the photo at 315A was thus entirely to be expected.

27. [27]
    In relation to the now cleared driveway shown at page 315B (top photo) the plaintiff was asked in evidence-in-chief about how that photo compared with what he had seen in 2010 (see T1-95 l 25 ff). He was asked;

“…When you went there, the front gate area was much as is shown in that photo – not much different?...Most likely, yes.“

28. [28]
    That answer defies belief. It was entirely inconsistent with the evidence of the first and second defendant, and Ms Trotter, all of whose evidence in this regard I accept. And it was also entirely inconsistent with common experience as to what would have occurred on the land between 1999 and 2010. I have no doubt it would have been overgrown, as the defendants and Ms Trotter said, and as shown in the photos at p315A of Exhibit 1.

29. [29]
    In coming to that conclusion I am mindful of the limited use for which a view can be utilised. In Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80, Atkinson J said;

“Views are permitted by r 478 of the Uniform Civil Procedure Rules (“UCPR”) which provides that the court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding. In relation to the utility of a view, the High Court in Scott v Numurkah Corporation (1954) 91 CLR 300 at 313 and 315 cited Unsted v Unsted (1947) 47 SR (NSW) 495 where, at 498, Davidson J observed that:

“Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept. … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence: London and General Omnibus Co. Ltd. v. Lavell. Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point: cf. Bourne v. Swan & Edgar Ltd.; 2 Payton & Co. v. Snelling, Lampard & Co. It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties: Way v. Way; Kessowji Issar v. The Great Peninsular Railway Co.”” (citations omitted).

30. [30]
    The plaintiff, when giving evidence also took regular opportunities to besmirch the work the defendants had undertaken, even if his doing so was unresponsive to the question asked of him. For example, in relation to the photos at page 315B already referred to he was asked (T1-97 l 7 ff) whether there was a change between what he saw in 2010 and what he saw when he again went to the property in 2016. He said, “yes, there was a change”. He was then asked if he could describe that change. His response was “very shabby work”. His own counsel became somewhat frustrated, understandably I might add, saying, “No…please don’t comment? Will you just listen to the question and tell His Honour what you can see changed”. Such conduct did little to enhance his credibility.

31. [31]
    By contrast I was generally impressed by the evidence of the first defendant. I accept that at some time, a year or more after the December 2010 visit by her father, and perhaps not for some years, she and the second defendant, who had been de facto partners since 2008, commenced to visit the property. I accept that in December 2010 and when they commenced to visit, the property was overgrown in the way they have described and that many of the items stored inside the shed since 1999 had been destroyed by vermin, moisture and the effects of the very lengthy period of neglect. I accept that the photos at p315A, whilst taken later in time, show the general nature of the growth present also in December 2010 and can be contrasted with the current position, shown in the top photo at p315B. Although the first defendant said she thought they had commenced visiting the property about a year after the Christmas 2010 visit it may, I find, have been later than that. In any case the frequency and duration of such visits increased over time. Gradually through hard work she and her partner have turned what had been an overgrown wilderness into what Darryl Kerrigan would proudly have described as “a home”.

32. [32]
    I accept that, as the plaintiff repeatedly told me, some of the work may not have been of great benefit, in the sense that it did not increase the value of the property. Nevertheless it did take significant work and money to bring about the changes that the defendants described, to turn the sheds into their home and improve their enjoyment of the property. The plaintiff, when giving evidence was asked to describe “the whole scene” (T1-120 37 ff). He said: “Excuse the language, in America they would call it redneck kind of living. A bit of this and a bit of that and all thrown together like it’s, you know, a gypsy kind of – it didn’t make any sense. It’s just rubbish.”

33. [33]
    Whilst the lifestyle the first and second defendants have chosen might not suit everyone, some of the work they did was relatively substantial. I accept that when they went to the property there was no power. They have, over time, installed 20 solar panels purchased at a cost of about $200 each together with an inverter, batteries and a back-up generator. They have built the cart port earlier referred to and improved the two sheds on the property. To the defendant’s credit she readily acknowledged that the plaintiff, in the time he lived at the property in 2016, purchased and installed wiring and hooked it up to the batteries and generator. The first defendant was asked in evidence-in-chief (T2-99 l 10 ff) about the solar panels and batteries. She said; “We sourced everything” and, without prompting said, “but my father did the wiring…when (he) first came we only had extension leads going from the generator to the house…and my father fixed that up and…made it proper wiring so that it was neater and safer”. Her willingness to acknowledge the plaintiff’s contribution was in marked contrast to the plaintiff’s inability or unwillingness to acknowledge the efforts of the defendants in turning what was an overgrown wilderness into their home, even if it was somewhat rough.

34. [34]
    The contrast between her ready acknowledgement of his help, and his denials or grudging admissions of the defendants’ efforts, was both stark and remarkable.

35. [35]
    I accept the evidence of the first defendant that she and the second defendant, and later Mrs Trotter, moved to the property and undertook the work they did because the plaintiff, in December 2010, told the first and third defendants, that he, the plaintiff, was holding the property for his three children – being the first, third and fourth defendants.

36. [36]
    I accept that in addition to money the first and second defendants spent, Julie Trotter also invested $20,000 into the venture. She did so by selling her home, which was subject to a mortgage, to her son (the fourth defendant) and then giving $20,000 she received to her daughter, or at least giving her daughter access to an account into which the $20,000 was deposited. Some of this money was used to finance improvements to the property and some was used for living expenses. But I find it was a payment by Ms Trotter to offset costs incurred in improving the property and was advanced in expectation she would live in one of the sheds on the property that the defendants had renovated and improved.

37. [37]
    I have no doubt that Julie Trotter’s contributing the $20,000 I have referred to was because she and her daughter (the first defendant) had agreed she too was to live at the property, in circumstances where the plaintiff had told the first and third defendants that the property was for “you three kids”. The work the defendants did included making the second shed on the property habitable for Mrs Trotter.

38. [38]
    Furthermore I accept, contrary to the plaintiff’s evidence to the opposite effect, that when he arrived at the property for the first time after returning to Australia in about March 2016, many of Julie Trotter’s goods and chattels had already been put in place in the rear shed. I accept it was intended by the defendants, and by Ms Trotter, that she would reside there. The reason she had not yet moved in was because she had just had heart surgery and was not yet well enough to do so, and because work was still to be done to make it suitable for her.

39. [39]
    Thereafter the plaintiff ensconced himself in that shed and over time moved Julie Trotter’s goods and chattels. I accept the first defendant’s evidence that over the six months from about March to September 2016 there were discussions between she and the plaintiff about the fact that Julie Trotter was to live in the shed and that the plaintiff should move out. I accept that this was a cause, ultimately, of a significant dispute between them in September 2016.

Findings

40. [40]
    I find, in addition to those findings I have earlier set out, that;

1. In December 2010 during a visit to the property, the plaintiff told the first and third defendants, that the property “belongs to you children”, that they “should be doing something with this place” and that they “were letting it go to waste” and “should otherwise sell it”. His reference to “you children” conveyed, and was meant to convey, that it belonged to each of the first, third and fourth defendants.

2. In reliance of those representations the first defendant (and her partner the second defendant) commenced at some time thereafter to visit and work on the property and, ultimately moved there and made it their home. They expended considerable effort and money in doing so. They also invited Mrs Trotter to join them there and, as a consequence, she sold her then home to her son, in the circumstances I earlier set out, and provided the first defendant with access to the $20,000.

3. After they permanently moved to the property, which was probably shortly prior to October 2015, and prior to the plaintiff’s return to Australia in March 2016, he was fully aware they had moved there, was aware of the fact they were making the property their home by expending time and money in improving it, and acquiesced in that plan.

4. At some time after his return to Australia the plaintiff sought to resile from that position. His doing so is likely to have been due to either his own financial and personal circumstances or to the falling out he had with the first defendant, and the fact that he resented that Ms Trotter was to live on the land, or a combination of such factors. Ultimately the cause of his attempting to resile from his representation and acquiescence is not critical. The fact is he did so.

41. [41]
    I find the plaintiff only raised objection to the first defendant’s occupation of the property when their relationship soured in about September 2016. That occurred in circumstances where the plaintiff had moved Ms Trotter’s possessions from the shed where he was staying to an old bus on the property where some of these goods were then adversely affected by the weather.

42. [42]
    It must have been apparent to the plaintiff, from the time he arrived to the property in about February 2016 that it was intended by the first defendant that Ms Trotter would also live there. He did not object to that matter at the time of his arrival. Initially his only criticism of the arrangement and work they had done appears to have been that “in a politically correct way (he indicated he was) not really happy about…the way the levels and elevations were made” (see T1-141 l 41-43).

43. [43]
    Whilst it is true that he commenced, from the time of his arrival, living in the shed Ms Trotter was ultimately to live in, that was in circumstances in which she had not yet commenced living there due to her relatively recent heart surgery and the then condition of the accommodation, and where, as I find, the first defendant told him, without his demurring, that the shed was for Ms Trotter. Only later, in circumstances which led directly to the breakdown of the relationship with his daughter did he remove Ms Trotter’s things and seek to more permanently occupy the shed himself. That is, only then did he act in a way inconsistent with the first defendant’s ownership of and entitlement to live on, the property.

44. [44]
    In my view, his failure to have made clear that the first defendant had no legal right to occupy the premises, and that Ms Trotter was not to live there, for a period of at least six months further significantly undermines his credit. It is inconsistent with his evidence and pleaded case.

45. [45]
    The defendants’ counsel submitted also that the plaintiff’s credibility was further compromised by the fact that he was not forthright in swearing affidavits in the Magistrates Court proceedings for domestic violence orders. He there asserted that he owned the property, had not agreed to the first or second defendant living there and that they had “just claimed it in my absence” (see Exhibit 1 pp 6, 14). I accept that such statements are inconsistent with evidence I accept that he knew of their living on the property from at least October 2015, knew that he had agreed and encouraged them to do so by his representation to the first and third defendants at Christmas 2010 and with his raising no objection to their doing so when sent the photos and texts set out in Exhibit 1 (pp 345 ff).

46. [46]
    His failure to refer to those matters in those court proceedings and his assertion they “just claimed it in my absence” does, as the defendants counsel submitted, further inform the adverse view I’ve formed of his credibility.

47. [47]
    Whilst I generally accept the evidence of the first defendant, and much of the evidence of Ms Trotter, I have concerns about the evidence of the other defendants. The evidence of the third defendant was somewhat vague and in my view grossly exaggerated the amount of work he had done on the property. I do not accept his estimate of the work he had done. There appears little if any evidence to support a finding he did work that could be categorised as a “substantial” detriment and I conclude any work he did do was merely to support his sister, and not by way of direct reliance by him on his father’s representation that the land was, inter alia, his. I reject his evidence that between late 2015 and late 2016 he did at least a full years worth of “days work”. In my view any such estimate was a gross exaggeration.

48. [48]
    I formed the impression that the fourth defendant had only a very vague recollection of events. He said in evidence that on one occasion, when the plaintiff was residing in America, they spoke on the phone and the plaintiff said to him “This is your property. I want to be able to retire there”. He said the plaintiff went on to say that he understood there were squatters on the land and that if they stayed there “too long they can take if off you”. It is uncertain when this representation might have been made and in particular whether or not it preceded the representation made to the first and third defendants during the Christmas 2010 visit to the property. I note also that such conversation was never put to the plaintiff by the defendants’ counsel.

49. [49]
    That is perhaps explained by the fact that until the 3^rd day of the trial, which was upon the resumption of the trial some six months after the first two days hearing, the third and fourth defendants were not parties to the action. The failure to put that conversation to the plaintiff of course means I do not have the benefit of hearing what the plaintiff may have said about the issue.

50. [50]
    The fact it is not alleged in the pleadings until the Particulars provided on 14 June were filed that the fourth defendant had such conversation, or that any of the defendants relied on such conversation as an inducement to work or spend money on the property or to otherwise act to their detriment, and where it was not said the fourth defendant had in fact relayed the conversation to either of the first or third defendants, cause me to conclude that I’m unable to find such a conversation occurred as the fourth defendant asserted. His evidence to that effect was, I conclude, to adopt the words of Lord Pearce, an example of the fact that “with every day that passes the memory becomes fainter and the imagination becomes more active”.

51. [51]
    When the plaintiff visited Australia in December 2010 the fourth defendant did not go to the property at the time the plaintiff and the first and third defendants did. He therefore had nothing to say about the relevant representation, other than saying he was aware that the first plaintiff had made representations to his two siblings about “the kids” ownership of the property, because they told him. He also said that from about age 15 his understanding from his mother was that at the time of her separation and divorce from the plaintiff that she “did not want anything from the divorce provided that the plaintiff ‘didn’t take the kids’ and that the property ‘was to be put in the three kids’ names’”. He said that as a result of being told of that by his mother he, and so far as he understood the first and third defendants, thought ‘it was ours’.

52. [52]
    It was undisputed that the property was at all times registered in the name of the plaintiff. It was also not disputed that he paid outgoings – probably only rates – on the land and that none of the children at any time did anything to bring about a legal transfer of registration. In March 2016, when the plaintiff returned from America, the first, third and fourth defendants were 30, 34 and 32 respectively. It is perhaps surprising, if they understood that the land belonged to the three of them, that they took no steps to have it registered in their name. In circumstances where it seems to me that none of the children had a sophisticated understanding of land tenure their failure to have sought a conveyance does not impact significantly on my assessment of their credit, and in particular did not impact on my assessment of the first defendant’s credit.

53. [53]
    The first defendant said that the plaintiff first indicated Ms Trotter was not to live on the property on the night of the dispute between them in September 2016. The fourth defendant also said the plaintiff’s attitude appeared to change only when it became obvious that Ms Trotter was in fact also living at the property.

54. [54]
    The fourth defendant said that when the plaintiff suggested he was going to retire in Australia, “the children” suggested he reside on the property and that “we’d build a donga for him”. The first defendant gave similar evidence because she said she would have liked him to stay on the property so they could develop a relationship. The plaintiff however did not accept such a conversation had occurred and no one suggested there had been agreement to such effect.

Changing nature of the defendant’s case and credit

55. [55]
    It is apparent from an examination of the various amendments to the defence and counterclaim that the defendants’ pleaded case changed over time. Indeed it was only during the resumption of the hearing in June 2018 that the third and fourth defendants were in fact joined as parties to the action.

56. [56]
    I have said already that in their defence filed on 22 December 2016 the first and second defendants alleged a number of matters as set out in [4] and [5] hereof which are not factually correct.

57. [57]
    It was not until the amended Defence and Counterclaim was filed at the time of the trial on 6 December 2017 that the first and second defendants alleged in paragraph 13(ii) thereof, that the plaintiff had made oral representations to the first and third defendants when they were together with the plaintiff on the land in about Christmas 2009 (or, as I find, Christmas 2010). The representation was said to have been that he would hold the land “for the benefit of (the) three children.” That was also said in this amended pleading to be the effect of the representation that was made by the plaintiff to Ms Trotter in 1997, rather than that set out in paragraph [4] above.

58. [58]
    Often a judge might conclude that the changing nature of a case, as reflected in amendments to the pleadings, should be seen as damaging to a party’s credit. Such considerations were the subject of discussion in the judgment McMeekin J in Germanotta v Germonatta & Ors [2012] QSC 116 at paras 38-42.

59. [59]
    In this case however I have concluded that the changes to the defendants’ pleaded case, and the late joinder of the third and fourth defendants, do not cause me to doubt that the plaintiff represented to the first and third defendants during a visit to the land in December 2010 generally what is set out in paragraph 1 (c) of the Further and Better Particulars. That was consistent with the testimony of the first and third defendants. Alterations to the pleaded case do not cause me to conclude that they, and the first defendant in particular, were uncertain about what was said by the plaintiff at that time. In so concluding I’m influenced by general issues concerning the credit of the plaintiff and the first defendant, and to a lesser extent the third defendant. Additionally, the changes in the defence were, I conclude, more probably due to difficulties the pleader had coming to grips with the defendants’ factual case than with changed instructions.

60. [60]
    Obviously I do not know the content of what the first and second defendants told their solicitors who prepared the original defence (who were I note not the current solicitors). I am however conscious of the following assertions made early on in time which are generally consistent with the defendants’ current pleaded case;

1. In support of an application of 12 September 2016 (see Ex 1, p 27 ff) to vary a domestic violence order made three days earlier, the first defendant said that the plaintiff “now wants to remove me from my own place that is held in his previous name, Yousry Abdul-Malik”.  This was clearly an assertion of entitlement to the subject property made prior to the defendants’ initial defence.  That view is reinforced by a further statement of the first defendant in that same application (p 29) that the plaintiff “has taunted us with the fact that as the property is still in his name he can do as he pleases”.  Again that appears to be an assertion generally consistent with the first defendant’s current case and was made early on in the dispute.

2. So too the second defendant, in his application for a DVO of 26 September 2016 referred to the property (at p 33, Ex 1) as “our home” and “our address” and asserted that the plaintiff’s conduct was “to try and take the property away from his daughter.  The property was left to Angelina (the first defendant) in a divorce settlement”.

61. [61]
    The making of the alleged representation in 1997 was part of the plaintiff’s pleaded case. Ms Trotter was however vague about that representation and in the circumstances I do not find it was made. I have no doubt that something was said about the land and it is possible that the plaintiff said something at the time about his insuring the children benefited from the land. Ms Trotter however did not have a clear recollection of what was said. It is possible for example that the plaintiff may have said something about leaving them the land on his death or in some other circumstance. I do not accept her evidence that he was holding it for them as she said in evidence. In any case I do not find any of the plaintiffs relied on any representation made at that time, that is 1997. The first defendant in moving to the land in 2015 relied instead on the representation made in Christmas 2010. In making these findings I make it clear that I prefer the evidence of Ms Trotter to the plaintiff but find that she did not have a sufficiently clear recollection of what was said to enable me to find that the representation was made in 1997 as pleaded.

62. [62]
    Whilst it is true, as the plaintiff’s counsel notes, that there was no reference to the representation said to have been made in 2010 in affidavits filed at that time, I note the then defendants’ were at the time of the DVO applications self-represented in those proceedings. By February 2017 they had obtained representation by solicitors, Freeman Lawyers. In paragraph 36 of an affidavit of the first defendant filed in the Magistrates Court and sworn on 5 February 2017 (p 157, Ex 1), so only about nine weeks after the filing of the Defence and Counterclaim, and well prior to the much later amendments to that pleading, she stated;

“36 Around Christmas 2009, my Father took my brother Amir Abdul-Malik and me to the Peak Crossing property and said words to the effect of:

1. (a)
   this property belongs to you kids and you should not let it go to waste;

2. (b)
   you should do something with the property; and

3. (c)
   otherwise you might as well sell the property and get rid of it.

37. …

38. After my Father took my brother and me to the Peak Crossing Property, Jamie and I started to go there on a regular basis to clear out the land and maintain the property.

39. Eventually we’d decided to renovate the two sheds to make it liveable.

40. Our involvement in clearing the land and renovating the sheds became more active when my mother was ill and had heart surgery at the Greenslopes hospital in approximately 2013.

41. My mother sold the house and gave me much of her life savings, approximately $20,000.00 to buy material to renovate the two sheds.

42. It was my intention and my mother’s intension that we would renovate the Peak Crossing property and make the two sheds liveable so that my mother would occupy one shed and Jaime and I would live in the other shed.

43. During the renovation of the Peak Crossing property from approximately 2012 I maintained contact with my father more frequently and he was aware that I was living at the Peak Crossing property.”

63. [63]
    It could not in such circumstances sensibly be said that the changing nature of the defendant’s pleaded case in December 2017 was due to changes in the defendant’s instructions which should cause me to doubt the first defendant’s credit. Rather, I think such changes were probably brought about by the defendants’ solicitors obtaining inadequate instructions initially and/or not properly understanding the importance of such instructions. In such circumstances, the change in the pleadings made at trial do not cause me to doubt the first defendant’s and third defendant’s evidence about what occurred during the Christmas visit to the land with the plaintiff.

Commencement of work on the land

64. [64]
    An issue arose, which in my view was of limited importance, concerning whether the first and second defendants commenced work on the land from 2015, or whether it had begun earlier than that. I note in the bankruptcy record signed by the first defendant on 31 March 2015 (see page 314 of Exhibit 1) that she noted her residence as 65 Sinder Drive, Ellen Grove rather than the subject land, indicating that she had not then moved to the property. I note too, the email at page 345 and the following photos of Exhibit 1, appear to have been sent soon after she and the first defendant commenced living on the property. Whilst they may have been visiting and performing work for some time prior to commencing to reside there, the email does suggest she had only resided there very shortly before the email was sent. I’ve concluded in the circumstances that the first of those emails was likely to have been sent only shortly prior to 8 October 2015, being the date of the subsequent email at page 350 of Exhibit 1.

65. [65]
    So too the plaintiff’s answer of “No” to question 35 in the bankruptcy questionnaire of March 2015, which asks “have you contributed or otherwise assisted in the purchase or improvement of any asset being over $1,000.00 which is held by someone else” assists me to a limited extent in concluding that at that time, that is March 2015, she had not performed substantial work on the property.

66. [66]
    I note that the first defendant in her affidavit of 26 September 2018 in support of her DVO application said (at p 66 of Ex 1) she had been living at the property “for the past two years”. Having regard to all of the evidence I find that at about that time i.e September 2014 the first and second defendants started living on the property, but only moved there permanently about a year later.

67. [67]
    Counsel for the plaintiff submits that I should accept the evidence of the owner of an adjoining property, through which access to the subject property is gained by way of an easement, that it was not until 2015 that the first and second defendants regularly occupied the land. Whilst I accept that conclusion (for the reasons I have earlier set out), I did not find the evidence of the neighbour, Mr Carvolth, otherwise especially persuasive. It appeared to me he had – perhaps with some reasons – a strong dislike of the second defendant in particular and his evidence may have reflected that. It seemed to me he did not want the first and second defendants to continue to live on the property.

68. [68]
    Ms Carvolth says he saw no indication of person visiting or living on the property until after his return from a long trip around Australia which return was in late 2014. He said he had flown back and returned to his property twice during his trip, which had begun in about 2011, in both 2012 and 2013. He said that he had locked the gate to the property when he had left in 2011 and it seemed to him that no one had visited the property thereafter.

69. [69]
    Ms Carvolth first became aware of people being on the property at about Christmas 2014 and in February 2015 met the second defendant at the subject property. I accept this evidence, which is consistent with my own assessment of when the original defendants began working on the property. He also said that during a conversation with the second defendant about some earth works he had done on the property, the second defendant said, in effect, that he was “clearing up” as the plaintiff was coming back from America and that he didn’t want to do too much earthworks because he “didn’t want to upset” the plaintiff.

70. [70]
    It was suggested such a statement was inconsistent with the view that the plaintiff had made the representation the first and third defendants gave evidence of in December 2010.

71. [71]
    While such an inference might be true if the statement was in fact made to Mr Carvolth, I do not accept that the second defendant said what Mr Carvolth said he had. Mr Carvolth’s animosity to the second defendant was obvious. He felt he was an undesirable neighbour and in my view this tainted this evidence about that conversation. It is in my view relatively improbable that Ms Carvolth would now recall the detail of an apparently inconsequential conversation more than three years after it was said to have occurred. I also infer that he was not asked to recall the conversation until recently, as his evidence was not opened during the plaintiff’s case in December 2017 but was given only when I gave the plaintiff leave to reopen his case, without objection from the defendants, in order to call that evidence in June 2018.

72. [72]
    The asserted statement is inconsistent with the original defendants’ evidence about their entitlement to occupy the property which I have found to exist, and more especially is inconsistent with photographs subsequently sent to the plaintiff by the first defendant from about October 2015 (see photos at pages 345 to 353 of Exhibit 1). They clearly show the first and second defendant had conducted significant work on the property (albeit that the photos do not show the earth works which the second defendant had undertaken and which led to the annoyance of Ms Carvolth.)

73. [73]
    I am also not satisfied that in early 2015 the defendants were aware of any intention of the plaintiff to return to Australia. Indeed, I am not satisfied that at that time the plaintiff had an intention to return to Australia or had told his children of that intention. In my view it was not until late in 2015 that the plaintiff made clear his intention to return. He did so some significant time after the first and second defendants had started work on the property, and after they had moved to live on the property. This finding is contrary to the submission of the plaintiff’s counsel that by early 2015 “all four defendants were well aware of the plaintiff’s intention to return to Australia” (see paragraph 14 of his written submissions). No transcript reference to support that contention was given. He also submitted that all defendants were aware the plaintiff intended to live on the property. Again I do not accept that contention which is again made without reference to any passages in the transcript. In any case, I referred earlier to the fact the defendants did not, at least until September 2016, oppose the plaintiff also living on the property.

74. [74]
    In his written submissions the plaintiff’s counsel at paragraph 19 submitted that none of the defendants sought any approval from the plaintiff to take up residency on the property and to commence works thereon.

75. [75]
    I accept that they did not do so, but of course that is consistent with their evidence that the plaintiff had said in effect that the first, third and fourth defendants were the owners of the land and should do something to improve it. And in any case, as I have earlier set out, whilst the first defendant did not seek permission from the plaintiff, she did effectively inform him of the fact that she and the first defendant were living on the land and conducting not insignificant improvements to enable them to live there. The email which commencing “(t)hank you for giving Jaime and I a start” and the subsequent photos sent to him are, as I have earlier said, entirely inconsistent with the plaintiff’s case. I note also he did not make any objection to the fact they were living there and conducting work on the property either in email correspondence or otherwise before his return to Australia or after his return. Indeed, as I noted, he assisted the first defendant by work he himself did connecting power to the property as earlier outlined.

76. [76]
    The plaintiff’s case is that during the Christmas visit to the land he raised with the first and third defendant his intention to construct a dwelling on the property and sought their views on the best location for it. He says there was no other material discussion about the land (see T1-85 l 27 to T1-87 l 4 and T1-91 to T1-93 l 3). I do not accept his evidence about that, for the reasons earlier set out.

Legal Principles

77. [77]
    The parties were very largely in agreement about the applicable legal principles. Counsel for the defendants provided at the commencement of the trial a summary of those principles which the plaintiff’s counsel accepted represented the applicable law. I have relied on it significantly in setting out relevant legal principles.

78. [78]
    The Defendants’ case is that they improved and maintained the property, which was legally owned by the plaintiff, over a period of several years at their own expense and personal exertion, upon an assumption engendered by the plaintiff that the property was beneficially owned by the first, second and third Defendants.

79. [79]
    A question to be determined is whether law permits the plaintiff to do have the Defendants removed from the property.

80. [80]
    In Giumelli v Giumelli (1999) 196 CLR 101 at 112, [6] the High Court said:

“…the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff.  This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant.”

81. [81]
    In Riches v Hogben [1985] 2 QdR 292, 302 McPherson J described the equity as an “equity of expectation”, and in the Full Court, after observing that “the principle has a very wide operation”, Kelly SPJ said that:

“to give rise to the equity it is sufficient if the party seeking to do so has acted on the faith of an assurance in such circumstances that it would be unjust and inequitable for the party making the assurance to go back on it.”

82. [82]
    The equity can arise from a defendant’s detrimental reliance upon such an assurance given by the plaintiff.

83. [83]
    Representation: The plaintiff must have given an assurance, or made a promise or representation, that the first, third and fourth defendants would acquire an interest in the property. Whether an assurance was given is to be judged in the particular context in which the words or conduct took place, and by reference to the way in which the parties were in the habit of communicating with each-other.

84. [84]
    The estoppel is founded not upon the giving of an assurance, but instead upon a defendant’s detrimental reliance upon it. The actual intention of a plaintiff who made the representation is irrelevant to the estoppel. What matters is what his or her words and conduct would reasonably have conveyed to the recipient.

85. [85]
    In Thorner v Major [2009] 1 WLR 776 (HL) the deceased farmer had never in fact said that the plaintiff would receive his extensive farms when he died. But in circumstances where the two men were taciturn Somerset farmers, the House of Lords held that it was sufficient that the assurance was “a matter of implication and inference from indirect statements and conduct”, such as handing over an insurance policy bonus notice with the words “that’s for my death duties”, and other oblique remarks on subsequent occasions. Their Lordships held that to establish a proprietary estoppel, the relevant assurance must be “clear enough”, to the person to whom it was made (at [26], [56]), and that it was in the instant case.

86. [86]
    Nor does it matter that the interest in the property promised is not precisely described, if the conditions for the estoppel are otherwise made out. In Flinn v Flinn [1999] VR 712 (CA) the promise was to leave an unspecified interest in a grazing property to the plaintiffs, but a trust was nevertheless imposed to satisfy the equity of expectation (see [57], [58], [81], [94]).

87. [87]
    Importantly for this case, the assurance may involve either an encouragement to the defendants to alter their position, or the silent standing by while they change their position on the faith of an evident belief about their rights to property. Indeed, it has been observed in Thorner v Major [2009] 1 WLR 776 (HL) at [84] per Lord Walker of Gestingthorpe that “perhaps the classic example of proprietary estoppel is based on silence and inaction, rather than any statement or action”. Cases of silence and inaction are sometimes called “estoppel by acquiescence”, but may also be regarded as involving the making of an assurance by silence.

88. [88]
    Reliance: The defendant must have relied to his or her detriment on the plaintiff’s representation. In Grundt v Great Boulder Pty Gold Mines (1937) 59 CLR 641, 674-76 per Dixon J it was said that, “detriment” in this context means detriment that will be suffered by the first defendant if the plaintiff resiles from the assurances made, and refuses to confer the promised interest in land.

89. [89]
    Detriment: In Donis v Donis (2007) 19 VR 577 (CA) 583 at [20], it was said detriment “is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances.”

90. [90]
    In Guimelli v Guimelli (supra), a plaintiff was earning his full income from a farming enterprise, and there is no appreciable loss of income from continuing to work it on the faith of an assurance that part would one day be his. The detriment suffered was said, at [27] to be “the loss of the property which he worked to improve, not to obtain immediate income from that exercise, but to gain the proprietary interest” for which the plaintiff “gave up the opportunity of a different career path”.

91. [91]
    In addition to the loss of an opportunity to take a different career path, detriment in this context has included improving premises in which to live on the farm, living in sub-standard accommodation, long, hard work for little remuneration, having children earlier than would have otherwise been chosen, and relocating to the promised property.

92. [92]
    Receiving no or low wages can count as a detriment, even if the plaintiff is given other benefits such as free accommodation. Indeed, the conferring of even substantial benefits by a party on the other party does not prevent the estoppel arising if the second named party has arranged his or her life, as by working and living on the property, on the faith of an assurance that it would one day be his or hers. In one case involving a family farm, the court said that “I regard the so-called benefit of ‘rent free’ accommodation as substantially irrelevant”.

93. [93]
    There is no need for there to be any equivalence or even substantial correspondence between the detriment suffered on the one hand, and the value of the proprietary interest that the party has been led to expect, although if the expectation is extravagant or out of all proportion to the detriment suffered, the equity may be better satisfied by an order falling short of making good the expectation.

94. [94]
    Relief: Once the elements of the estoppel are established, the first plaintiff’s prima facie right is to have the assurance made good. However, the content of the equity is in the end determined by all of the circumstances, and the court retains a discretion to mould its orders to suit the particular circumstances of the case.

95. [95]
    Where the assurance is that the first defendant will receive a particular interest in land, the court may declare a constructive trust to the extent of that interest, or order payment of a sum of money calculated by reference to the value of the interest: see Giumelli v Giumelli (supra) at p123, [42] and p125, [50]. In cases where there has been a breakdown in a family relationship, it is sometimes said that a money payment is preferable, in order to afford the parties a “clean break”. I interpose that in this case such issue may be of significant importance in determining what order ought be made in this case.

96. [96]
    The defendants, as I have earlier stated, relied on an alternative remedy of failed joint endeavour.

97. [97]
    Where two or more parties have engaged in a joint endeavour, without agreeing what is to occur with the joint property if the endeavour is terminated early, equity will intervene to prevent one party acting unconscionably in the division of assets following the termination.

98. [98]
    The relevant equitable principle as stated in Muschinski v Dodds [1985] 160 CLR 583 is as follows:

“… the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.”

99. [99]
    The notion of “without attributable blame” in the above extract is of lessened importance in subsequent authorities and in the context of the breakdown of family or domestic relationships. In Schmulz v Aras (unreported) S Ct NSW per Bryson J, 8 August 1995, No94003129/94 his Honour said;

“... a constructive trust of this kind is imposed ... when the venture comes to an end 'without attributable blame,' but no great severity is in my opinion appropriate in applying the concept of attributable blame. In particular where family relationships break down and the continued association of closely related persons becomes intolerable and impracticable, it is in my opinion not appropriate for courts to seek to attribute blame, as such breakdowns are a human phenomenon which sometimes occurs, cannot really be avoided, was objectively foreseeable but was not actually contemplated by the parties when they entered the venture, and does not alter the claims in conscience to redress the situation by imposing a constructive trust where reliance on what would otherwise be the party's legal or equitable rights is unconscionable.”

100. [100]
     Counsel for the defendants submitted that if the elements extracted above are engaged, the parties should be proportionately repaid their contribution to the property. In the context of property renovations, the decision in Luke v Chamberlain [2000] NSWSC 626 is said to be comparable. In that case, Ms Luke and her children moved into a neighbour and friend’s house after Ms Luke had separated from her husband in the expectation that they could live there indefinitely. In order to better accommodate herself and her children in the house, Ms Luke paid $37,000 for renovations. Upon the breakdown of the relationship between Ms Luke and the owner of the house, the Court ordered that there be an equitable charge in favour of Ms Luke for the sum of $37,000 together with interest.

Consideration

101. [101]
     Subject to consideration of the rights of the individual defendants, I have concluded that these legal principles warrant judgment in favour of the Defendants.

102. [102]
     Counsel for the plaintiff submitted that there is “no acceptable evidence…to enable any assessment to be made of any value of any of the works allegedly undertaken by any of the defendants since commencing work of any description on the subject land”. In particular he refers to the lack of “valuation evidence” or “evidence to prove that the value of the property has been enhanced by work that had been carried out.”

103. [103]
     In making that submission counsel relied on observations McMeekin J in Germanotta v Germanotta & Ors [2012] QSC 116 at [6] concerning, inter alia, the need for parties seeking to establish a claim based on an estoppel by representation to show “detriment”. His Honour, consistent with authority, emphasised that the detriment “need not consist of expenditure of money or other quantifiable disadvantage so long as it is something substantial.” His Honour relied on a statement to like effect made at paragraph of the Victorian Court of Appeal decision Donis v Donis [2007] 19 VR 577.

104. [104]
     The difficulty with counsel’s submission is that the first defendant has, I find, substantially acted to their detriment. If the first defendant was now to be forced from the land the work they have undertaken, which has been substantial would be lost to them. The fact the work was not the subjection of valuation evidence, and may indeed not have improved the value of the property, is not to the point. Nor is the fact that evidence of the precise amount expended, or at least acceptable evidence of that amount critical. I conclude the evidence of the first and second defendants about their estimation of expenditure, and of their estimation of the worth of their personal exertion, exaggerated. I nevertheless find they have expended a significant sum of money and considerable personal exertion, and enlisted help of others, to bring the property up to its current standard.

105. [105]
     Whilst it was not specifically argued in Donis v Donis (supra) it seems to me significantly possible that the work the respondent to the appeal in that case had undertaken to the house she and her former husband had occupied, albeit comprising only part of the alleged detriment, might not have contributed to an increase in the value of the land when it was ultimately sold for development after she had been forced from the house. Certainly no evidence of increased value due to her improvement of the property is referenced in the judgments.

106. [106]
     In my view, and contrary to the plaintiff’s counsel’s submission, to now deprive the first defendant of the benefit of her, and her partners (the second defendant), physical endeavours and their expenditure of money, including money provided by Ms Trotter to them, would, in circumstances where I accept that the plaintiff made the representation relied on would, to adopt the words used by McMeekin J at paragraph 7 of his judgment in Germanotta, be “unreasonable and oppressive to an extent that affronts ordinary minimum standards of fair dealing”.

107. [107]
     Counsel further submitted that the defendants did not establish what were said to be the representations relied on to the requisite standard. He submits that it “is clear that in giving evidence the Defendants were not swearing to the precised words used” but of the substance and effect of what was said. Further he submitted that where a party has given conflicting accounts of relevant circumstances there must be a “serious doubt” about the alleged events. Undoubtedly, significantly conflicting accounts of events given by a witness will often cause a Judge to have doubt about the witness’s credibility. But in my assessment the first defendant has not given significantly conflicting accounts of what the plaintiff represented to her and the third defendant during the Christmas visit to the land. So refer to the plaintiff as having said “words to the effect of”:

1. (a)
   This property belongs to you kids and you should not let it go to waste;

2. (b)
   You should do something with the property; and

3. (c)
   Otherwise you might as well sell the property and get rid of it.

That amounts to evidence of what was said, or substantially what was said, and is not a mere assertion of the substance and effect of what the plaintiff said, even if the precise words could not be recalled.

108. [108]
     Consideration of an affidavit of the first defendants filed in the Magistrate Court proceedings for the domestic violence order (p157 of Exhibit 1) does not signify any significantly conflicting account of her testimony before me. Counsel also referred to the changing nature of the defence and counter-claim. I have dealt with that previously. It does not cause me to doubt the first defendant’s evidence.

109. [109]
     It would be unjust, as against the first defendant, to now require her and her partner, the second defendant, to vacate the premises, and it would also be unjust to allow the plaintiff, as against the first defendant, to resile from his representation that the property was for his children.

110. [110]
     In my view, there was not a joint agreement between the plaintiff and first defendant (or any of the defendants) so as to find a failed joint endeavour. At all times the relevant representation was just that he held the land for, inter alia, the first defendant. It was not suggested they jointly develop the land. The suggestion of the first defendant to the plaintiff that he could live in a donga on the land did not amount to a joint relationship of the kind such applied in Muschinski v Dodds (supra). It was, in my view, a statement of familial goodwill which the plaintiff might have, but did not, accept and did not result in the plaintiff doing anything in response. The alternative claim of failed joint endeavour should therefore fail. It was accepted by her counsel that in such circumstances the first defendant was entitled to a one third interest of the land.

Second Defendant

111. [111]
     In my view the second defendant is not entitled to orders he sought. No representation that he was to have an interest in the property was ever made. His actions in assisting with renovation of the property and any financial contribution by him to such improvements was because of his relationship to the first defendant. In my view, his legal position is not assisted by the representation made to the plaintiff’s children by the plaintiff.

112. [112]
     Nor can he succeed on the basis of a failed joint endeavour. At no time was there a relevant joint relationship between he and the plaintiff. His efforts and expenditure was not for the purpose of such a joint relationship, but was because of his relationship with the first defendant. The plaintiff’s claim against him should however be dismissed since he has a legal right to reside there at the invitation of the first plaintiff.

Third and fourth defendants

113. [113]
     The defendant’s counsel submitted that I should accept both the third and fourth defendants had suffered detriment by their reliance on the representations of the plaintiff. He submitted that this detriment consisted of:

1. Loss of a substantial part of their potential inheritance from their mother for her providing $20,000.00 for the use of the first and second defendants;

2. Their assisting the first and second defendants with work on the property and form time to time staying on the property in substandard accommodation including a disused bus;

3. The lost opportunity of otherwise deploying the first and second defendant to assist with the improvement of some other property or venture owned jointly by them.

114. [114]
     I do not accept that the third and fourth defendants have acted substantially to their detriment. The evidence of both about work they did was vague and, in the case of the third defendant, much exaggerated. Whilst I thought the fourth defendant an honest witness I do not significantly rely on his testimony in concluding the matter. I find he did not act to his detriment by doing substantial work on the property. Indeed he did not assert he had. He gave no evidence of any detrimental reliance on what the plaintiff said to his siblings. There was no evidence of any intention by the third or fourth defendants to become involved in a joint venture with the first and second defendants which could be utilised to their advantage.

115. [115]
     I also find any lost opportunity from the mother’s estate is entirely speculative and does not amount to a relevant detriment.

116. [116]
     I accept that Ms Trotter provided $20,000.00 for the use of the first and second defendants. A not insignificant part of that sum appears to have been for living expenses rather than directly for use in improving the property. But some part of it was. In any case her contributing such a sum does not amount to a detriment to the third and fourth defendants. She would, in the future, be entitled to live there with significant potential savings in rent and other expense. That may well have offset the $20,000.00 she provided. In any case, what must be shown was that in reliance on the representation by the plaintiff they acted to their substantial detriment. In relation to the $20,000.00, they did nothing. Their mother merely provided that sum for the use of the first and second defendants. No action in relation to the sum could be said by the third and fourth defendants to have been induced by the representation. Even in respect of the fourth defendant’s purchase of his mother’s property there was nothing to allow me conclude that it was not an arms length transaction or not to the fourth defendant’s advantage. I also do not see how living on the property from time to time – and there is no acceptable evidence of the extent to which either of the defendants stayed there – could amount to a detriment. To characterise the property as substandard overlooks the benefits that a person might obtain from staying at a rural property overnight observing the moon or nature or otherwise deriving significant personal benefit from it. To characterise the standard of accommodation as substandard does not in my view constitute a detriment, let alone a substantial detriment.

117. [117]
     I do not accept that either of the third or fourth defendants have acted to their substantial detriment and therefore their claims fail. In circumstances where their equity has not crystallised the consequence is that the plaintiff retains a two thirds interest in the land.

Orders

In the circumstances I will hear submissions from the parties concerning the form of the order I should make. My initial view is that they should reflect the following portions:

1. That the plaintiff’s claim against the first and second defendants be dismissed.

2. The plaintiff is estopped from denying the first defendant the benefit of the land.a

3. The plaintiff holds one third of his legal ownership in the land on trust for the benefit of the first defendant.

4. The plaintiff grant the first defendant a license to occupy the land.

5. The plaintiff pay the first and second defendant’s costs of and incidental to the claim and order the plaintiff also pay costs of the first defendant’s counterclaim.

6. The second, third and fourth defendants’ counterclaims are dismissed.

7. I make no order as to the costs of the second, third or fourth defendants’ counterclaims.