Norris v Friend [2022] NSWSC 1416

Supreme Court New South Wales

Medium Neutral Citation: Norris v Friend [2022] NSWSC 1416 Hearing dates: 8-9 August and 5 October 2022 Date of orders: 19 October 2022 Decision date: 19 October 2022 Jurisdiction: Equity Before: Darke J Decision: Further Amended Statement of Claim is dismissed with costs. Catchwords: REAL PROPERTY – transfer of land pursuant to intergenerational transfer – whether transfer was conditional on defendant transferee permitting plaintiff transferor to live on the land and farm it for the rest of the plaintiff's life – whether an estoppel arises from conversations between plaintiff and defendant before transfer – whether transfer effected for the purposes of a joint farming endeavour – factual bases of plaintiff's claims held not to be established Legislation Cited: Conveyancing Act 1919 (NSW), s 23C, s 54A Duties Act 1997 (NSW) s 274 Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3) Category: Principal judgment Parties: Colin Joseph Patrick Norris (Plaintiff) Paul Martin Friend (Defendant) Representation: Counsel: Ms P Lane with Dr A Sapienza (Plaintiff) Mr J A Trebeck (Defendant)

Solicitors: Legal Aid Commission of NSW (Plaintiff) A J & Associates Lawyers (Defendant) File Number(s): 2021/909 Publication restriction: None

Judgment

Introduction 1. These proceedings concern three parcels of rural land located on the Newell Highway, Trewilga. The title references for the parcels of land are Folio Identifiers 13/755113, 1/254166 and 15/755113. The first two parcels comprise approximately 284 acres of agricultural land, and include a residence and a pig farrowing shed. Those parcels are together referred to in the pleadings as "Oak Valley". By about 1998, the plaintiff, Colin Norris, had become the owner of the three parcels. The land had previously been owned by his father, Joseph Norris. The plaintiff lived in the residence on Oak Valley and he grew crops and ran pigs there. 2. The three parcels of land were transferred by the plaintiff to the defendant, Paul Friend, by Transfer AB512148. The defendant is the plaintiff's nephew. The Transfer is dated 13 September 2004. It was registered on 28 May 2005. At that time, a mortgage (3928920) over the first two parcels in favour of Westpac Banking Corporation ("Westpac") was discharged, and a new mortgage (AB512149) in favour of Westpac was granted by the defendant over all three parcels. In 2010 the ownership of parcel 15/755113 was transferred into the names of the defendant and his then wife, Melainie Friend. In 2012, the Westpac mortgage was discharged. A new mortgage (AH260349) in favour of Australia and New Zealand Banking Group Ltd ("ANZ") was granted over parcels 13/755113 and 1/254166. The defendant no longer has any interest in parcel 15/755113. He disposed of his interest in 2015. 3. The plaintiff claims that the defendant undertook to take the transfer of the land subject to an arrangement whereby the defendant agreed that he would permit the plaintiff to remain in possession of the land and farm it for his life. 4. The plaintiff in fact remained in possession of at least the two Oak Valley parcels, and until about late 2020 undertook farming there. However, any entitlement of the plaintiff to do so has been the subject of contention between the parties since about 2009, when their relationship effectively broke down. 5. The plaintiff claims that he has an entitlement to equitable relief against the defendant on three bases, namely: 1. that the transfer was a conditional gift, the condition being that the plaintiff would retain a life interest in the land that would allow him to live on and farm the land for his lifetime; 2. that by reason of representations made by the defendant that the plaintiff could live on the land and farm it for his lifetime, and the plaintiff's reliance upon the representations, the defendant is estopped from denying the existence of a life interest in favour of the plaintiff; and 3. that a trust arises or should be imposed in favour of the plaintiff in circumstances where the alleged arrangement, and a farming business, were jointly pursued by the plaintiff and the defendant for a period but has since broken down, with the result that it would be against conscience for the defendant to assert title to the land without recognising the plaintiff's claim to recover his contributions to the joint enterprise. 1. The plaintiff's claims are denied by the defendant. He denies the existence of any agreement with the plaintiff to allow the plaintiff to reside on the property for his lifetime. The defendant also denies any entitlement of the plaintiff to continue farming on the property for his lifetime. In addition, the defendant raises defences under ss 23C and 54A of the Conveyancing Act 1919 (NSW), as well as laches and defences under the Limitation Act 1969 (NSW). 2. In the plaintiff's case, three affidavits of the plaintiff were read, namely, affidavits dated 18 March 2021, 10 June 2021 and 14 July 2022. Affidavits of Leanne Tremain (16 February 2021) and Neil Unger (16 February 2021) were also read. Mr Unger, who was required for cross-examination, was ultimately not called, so no use can be made of his affidavit (see Uniform Civil Procedure Rules 2005 (NSW) r 35.2(3)). Many parts of the affidavits were not read or rejected as inadmissible. Only the plaintiff was cross-examined. 3. In the defendant's case, three affidavits of the defendant were read, namely, affidavits dated 14 February 2021, 9 May 2021 and 28 July 2022. Again, many parts of the affidavits were not read or rejected as inadmissible. The defendant was also cross-examined.