Supreme Court New South Wales Medium Neutral Citation: Bryant v Bryant [2014] NSWSC 374 Hearing dates: 18, 19 and 20 September 2013 Decision date: 01 April 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: 1. Declare that the defendant holds his interest in the family home on trust for the second plaintiff. 2. Orders for the transfer of that interest to the second plaintiff. Catchwords: ESTOPPEL - Equitable estoppel - Proprietary estoppel - Creation or encouragement of assumption - Representation by husband, and father, that he would transfer interest in family home to son - Estoppel operative in favour of wife and son Legislation Cited: Conveyancing Act 1919 NSW, s 66G. Family Law Act 1975 Cth, s 79, s 79(4), s 75(2) Family Court s 79 s 44(3)(c), s 44(4)(a) Limitation Act 1969 NSW Cases Cited: Ciaglia v Ciaglia [2010] NSWSC 341 at [36]. Delaforce v Simpson-Cook (2010) 78 NSWLR 483, 486 [5] Forgeard v Shanahan (1994) 35 NSWLR 206 at 221-224 Giumelli v Giumelli (1999) 196 CLR 101 Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-240 Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137 Orr v Ford (1989) 167 CLR 316 at 337 esp 340-341 Tadrous v Tadrous [2012] NSWCA 16 at [38] Waddell v Waddell [2012] NSWCA 214 at [65]-[66] Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Young v Lalic [2006] NSWSC 18 at [32]-[49] Texts Cited: - Category: Principal judgment Parties: Judee Bryant (First Plaintiff) Maddison Eric William Bryant (Second Plaintiff) Maxwell John Bryant (Defendant) Representation: Counsel: Jane Merkel (Plaintiffs) RE Dubler SC (Defendant) Solicitors: Fleming & Associates (Plaintiffs) O'Reilly & Sochacki Lawyers (Defendant) File Number(s): 2012/0239418 Judgment INTRODUCTION 1These proceedings concern a dispute about ownership of a family home (with an agreed current market value of $595,000) located in South Durras on the South Coast of New South Wales. 2The contest is between a mother and her adult son (respectively, the first and second plaintiffs) and the father of the son, the former husband of the mother (the defendant). 3The legal title to the property (folio identifier 16/5/758369) is in the name of the parents (the first plaintiff and the defendant) as joint tenants. It is unencumbered. 4By their statement of claim in its final version (as filed on 18 September 2013) the plaintiffs seek, principally, a declaration that the defendant holds his interest in the property on trust for the second plaintiff (the son), together with a consequential order that the defendant transfer that interest to the son. 5There are alternative claims for relief. One is directed towards an adjustment of the property rights of the parents, based on their respective financial contributions to the property and the welfare of the son. Another is directed towards an award of equitable compensation to the mother, based on those contributions. 6The alternative claims for relief do not appear to me to require investigation despite the plaintiffs' appeals to Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137. There is no necessity for the Court to enter upon any form of accounting exercise designed to weigh up the respective financial or other contributions of the parents. 7Nor is there any doubt that, as a dutiful wife and mother, the first plaintiff contributed her all (including her wages as a nurse and non-financial services at large) to the wealth, and welfare, of the family. 8The defendant's principal contribution may have been capital sums derived, in part, from beneficence on the part of his father; recognised, in part, in the unequal distribution of proceeds of sale of matrimonial property (other than the South Durras property) in 1988, after the breakdown of the marriage between the first plaintiff and the defendant. 9During the marriage the first plaintiff appears, on several bases, to have acquiesced in dealings with, or distributions of, property (including proceeds of sale of shared property) by or on behalf of the defendant. 10First, being a woman of her time, she conventionally deferred to her husband in decisions perceived by her to be about property or business; rightly or wrongly, she felt excluded from commercial decision-making processes of her husband relating to property. 11Secondly, reflecting a deeply maternal turn of mind accentuated by her training as a nurse, and recognising problems attending dealing with the defendant because of health issues arising from his war service in Vietnam, she was more tolerant of aberrations in his behaviour than she might otherwise have been; at various times in their overlapping lives, she has allowed him time, space and respect beyond that which, in a partnership of equals, may have been tolerated by other people. 12Thirdly, and significantly for her principal claim in these proceedings, she has been encouraged by the defendant to assume, and she has consistently assumed, that she and her son (their son) would always be secure in occupation, and ownership, of the family home. 13The plaintiffs' case is, in substance, their claim to equitable relief based on an allegation of estoppel by representation relying upon, inter alia, Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; Giumelli v Giumelli (1999) 196 CLR 101 and Delaforce v Simpson-Cook (2010) 78 NSWLR 483. An allegation of estoppel by representation can merge with an allegation of estoppel by encouragement in some cases. This appears to be such a case. 14At times the plaintiffs' case appears to have taken on the flavour of an application by the first plaintiff for an alteration of property interests under the Family Law Act 1975 Cth, s 79, with its focus (via s 79(4), read with s 75(2)) on discretionary factors relating to contributions to wealth and the welfare of family members. The defendant, for his part, joined issue on the same battleground. Each party did so imperfectly in the sense that they raised issues about family law entitlements, and the social merits of their respective cases, in the absence of any claim for relief able, in terms, to accommodate them. 15Evidence bearing upon competing perceptions of entitlements of husband and wife was not wholly irrelevant because, in advancing their estoppel claim, the plaintiffs contend that the first plaintiff acted in reliance upon a representation of the defendant, sometimes characterised as a "promise". She acted in reliance on that promise by refraining from making an application for s 79 relief within the one year after divorce prescribed by s 44(3)(c) for an application for such relief to be made. An application made outside the time limit has, at all material times, required a grant of leave, and proof of hardship absent a grant of leave: s 44(4)(a). 16The plaintiffs' claim is a claim in equity, not a claim for relief under the Family Law Act. Characterisation of the dispute between the first plaintiff and the defendant as a "matrimonial cause" is not in any event (in the context of the Jurisdiction of Courts (Cross Vesting) Act 1987 Cth) an impediment to this Court's exercise of jurisdiction: Young v Lalic [2006] NSWSC 18; 197 FLR 27 at [32]-[49]. The defendant has taken no objection to the plaintiffs' institution, or maintenance, of proceedings in this Court. 17The plaintiffs contend that, principally in 1992 but also at other times, the defendant orally promised the first plaintiff that she could continue living at the property without being disturbed by him and that, upon the second plaintiff attaining 21 years of age, he would transfer his interest in the property to the second plaintiff. 18The first plaintiff's evidence of this promise is corroborated, to an extent, by evidence given by the second plaintiff. He says that, more than once during his youth, his father told him that the property would be his. When the topic first arose he relayed his father's assurance to his mother, asking for and obtaining her confirmation of the arrangement she believed had been made between her and her husband, and effectively reinforcing her reliance upon what she believed she had been told by the defendant. 19The defendant does not deny that, until at least these proceedings were instituted against him, his intention was always that the first plaintiff (and the second plaintiff) could live at the property undisturbed by him. He saw, and perhaps still sees, that as part of his obligation to provide for the plaintiffs. 20Nor does he deny that, at least until the institution of these proceedings, his intention was that, barring unforseen contingencies, the survivor of himself and the first plaintiff would leave the property to the second plaintiff by will. 21Having fallen out with the plaintiffs (and, sadly, especially with the second plaintiff), he appears intent upon reserving a right, as he perceives it, to make no provision for his son along the lines earlier contemplated as foundational to his concept of family. 22Where he draws the line, emphatically, is in a denial that he ever had, or communicated to any person, an intention to divest himself of his interest in the property before death. 23His evidence is, to an extent, corroborated by evidence given by his brother (a solicitor) to whom, from time to time, his affairs have been entrusted. The brother cannot depose to what may, or may not, have passed between the parties to the proceedings. Nevertheless, the effect of his evidence is that, if any promises were made by the defendant, as the plaintiffs allege, they were not made within his presence and, to the contrary, in dealings between the siblings, the defendant consistently conveyed to him an intention to retain title to the property. 24The parties are squarely at issue on the question whether the defendant ever made a promise, to either plaintiff, that he would transfer his interest in the property to the second plaintiff. 25His denial that he ever made such a promise is accompanied by a denial of the first plaintiff's contention that she refrained from instituting Family Court proceedings in reliance on a promise of that character. He points to her evidence that one reason she did not institute family law proceedings was her perception, reasonably based, that he lacked the economic substance necessary to justify resort to litigation. 26He says, further, that the plaintiffs' claim to equitable relief should be declined by reason of laches, acquiescence or delay on the plaintiffs' part: Orr v Ford (1989) 167 CLR 316 at 337 et seq. 27A contention that the plaintiffs' claims are "statute barred" under the Limitation Act 1969 NSW, or by analogy in equity, has been pleaded but not separately addressed in submissions. Such entitlements as the plaintiffs may have lie in equity. They neither have nor assert a cause of action at common law. There is no basis upon which, by reference to s 23 of the Act, the Court should decline a grant of equitable relief should the plaintiffs otherwise establish an entitlement to it. 28By his cross-claim, in its final version (filed on 18 September 2012), the defendant applies for orders for the appointment of trustees for sale of the property pursuant to the Conveyancing Act 1919 NSW, s 66G. 29That application is grounded squarely on the defendant's legal title. It is met, on the other side of the record, by the plaintiffs' claim in estoppel. 30The parties are agreed that, if the statement of claim were to be dismissed and the cross-claim were to be allowed, there is no occasion for an accounting between the registered proprietors arising from either improvements to the property effected by the first plaintiff or exclusion of the defendant from the property. Cf, Forgeard v Shanahan (1994) 35 NSWLR 206 at 221-224. 31In economic terms, the defendant's case bears the colour of a man who was content to leave well enough alone, until the commencement of these proceedings forced his hand, but who, when provoked, set himself on a course designed to insist upon compensation, up to one half of the value of the subject property, if there were to be a change in title. He is apparently equally content for there to be a sale of the property or for him to be bought out by the plaintiffs. He has no sentimental or social attachment to the property, and no driving ambition to interfere with the first plaintiff's quiet possession of her family home, now occupied by the first plaintiff and her new husband, and long since abandoned by him as a place of residence. 32In large measure, the outcome of the proceedings depends upon which version of the parties' conversations is accepted. On the one hand, there is the evidence of the plaintiffs. On the other, the evidence of the defendant. 33To my observation, each witness from whom evidence was adduced endeavoured, to the best of his or her ability, to speak the truth as he or she perceives it. Each is fully persuaded of the correctness of his or her own perceptions. 34It is necessary to weigh the evidence in light of the objective surrounding circumstances in choosing which version of events is the most probable. 35Each of the parties to the proceedings wears the mark of life in a regional community, where still waters run deep. A few words, and things left unsaid, coupled with a course of conduct, can convey, or reasonably be believed to have conveyed, a message which, to city people, might require bells to ring and lights to flash. In Australian folklore, people of their ilk have commonly been called laconic. 36In the course of her evidence, when taxed in cross examination why she had not included in correspondence with her former husband or his lawyer brother, references to the promises of title she says he made to her, the first plaintiff revealed something of this cultural community in the following exchange: "Question: I want to suggest to you that in 2002 you wanted, even strongly desired, to have [the defendant] give up his share of the house but there had been no promise to that effect before. Answer: Up to this, his word was always his honour. In the bush, a lot of things were made on people's words and their honour and I expected the same from him. Question: Why didn't you put it in [a letter written to the defendant's brother at about that time]? Answer: If [the brother, a solicitor] didn't know what I was talking about, he would have contacted me." 37This attitude is one which, in my assessment, correctly encapsulates the way that the plaintiffs and the defendant, bound by their experience of life as well as family ties, were accustomed to deal with one another. Traces of it can be found in the manner in which each gave evidence, including a mild display of disbelief that any cross examiner could feel a need to challenge the "obvious" as the particular witness perceived the obvious to be. FAMILY HISTORY AND CONTEXT 38The defendant was born in 1945, the first plaintiff in 1948. Their relationship commenced in 1971. They married in 1973. Their son, the second plaintiff, was born in January 1980. He turned 21 in 2001. 39Their marriage was a first for the first plaintiff and a second for the defendant. His first marriage (productive of a daughter) had broken up at or about the time of the defendant's service, with the Australian Army, in Vietnam. He records in an affidavit filed in these proceedings that he lost contact with his first wife, and his daughter, in or about 1978. 40The subject property was purchased, with commercial land (shops) purchased shortly thereafter, in 1981. 41Between the time of their marriage and 1984 the first plaintiff and the defendant enjoyed a relationship in which both partners actively worked, and made financial contributions, in the common interest. They pooled their funds, capital and income. 42In or about 1984 the defendant suffered a severe psychological breakdown which was recognised in the subsequent award to him of a Veteran's Affairs pension. 43A fair inference, from all the evidence, is that the breakdown was a legacy of his war service. 44Following his breakdown, substantial, extra-ordinary, economic and social burdens were laid upon, and stoically borne by, the first plaintiff. She became the family's sole breadwinner, manager of their commercial properties, as well as homemaker and the mother of a much-loved toddler. 45The defendant, with financial assistance from his father, literally went sailing. He went in search of himself, ending up in Queensland, where he has ever since remained based. 46For practical purposes, the marriage came to an end when, in 1986, the first plaintiff took their son to visit his father. It was a short visit, not a happy experience. In the first plaintiff's perception, she found the defendant, evidently at peace with himself, in a heavy drinking, bike riding community of blokes. She had no wish to join that community, and her husband had no wish to return to that of his wife and child. They parted company, with the plaintiffs returning to South Durras and the defendant staying put in Queensland. An exchange of correspondence (not in evidence) formalised the separation. 47At one point early on, the first plaintiff canvassed divorce; but the second plaintiff got wind of it and was deeply upset. Both parents appear to have backed off at that time in deference to him. 48With characteristic stoicism, the first plaintiff persevered in the life of a single mother. Throughout her son's youth, he lived with her at the South Durras property, with occasional vacation visits to his father in Queensland. 49The first plaintiff paid the rates and all other expenses referable to the property. She supported herself and her son without financial assistance from the defendant beyond a contribution to the boy's expenses on access visits during school holidays. 50The marriage between the first plaintiff and the defendant was dissolved, in December 2000, in circumstances lacking ceremony. As the first plaintiff told the story, in her matter-of-fact way, during cross examination: "He [the defendant] rang me up and asked me did I want a divorce or would I mind if we got a divorce. I said no. He said, 'I will send you the papers. You sign it and I'll fix it', and we did." That was it. 51From a date no later than 1986, both parties treated the subject property as the exclusive domestic domain of the first plaintiff and hers, alone, to maintain and enjoy. 52Living in Queensland, the defendant re-partnered in 1987. He and his new partner bought a property together at about that time, and they married shortly after his divorce from the first plaintiff. 53Leaving aside jurisprudence about co-ownership, with shared legal entitlements to occupation and enjoyment of property, the parties proceeded on the basis that, if the defendant attended the South Durras property, he would, should and did so as a visitor, not as of right. That was the practical reality, the common assumption. He has rarely visited the property. He can, today, only remember two visits. One time to collect a vehicle, immediately after separation, in about 1986. The other time in October 1992. 54The first plaintiff re-partnered in or about 2005. She and her new partner married in 2010. 55In his oral evidence, the defendant rationalised, and justified, his retention of title to the property on the basis that, by remaining on the title, he protected it for the benefit of the plaintiffs and against the possibility that, if he signed over his interest to either of the plaintiffs, it might, to their detriment, pass to a third party, such as the first plaintiff's present husband. 56In this context, with due allowance for chronology, significance attaches to the visit made by the defendant to South Durras in October1992, as part of a bike riding tour to Canberra, with friends, to witness the unveiling of the Vietnam War Veteran's Memorial. On the way back to Queensland, he and his friends stayed overnight in South Durras. COMPETING VERSIONS OF DISCUSSIONS 57The core of the first plaintiff's evidence about intra-family conversations (which survived rigorous, but fair cross examination substantially intact) can be taken from the following extracts of an affidavit sworn by her on 5 October 2012: "55. I remember that [the defendant] and I were standing out the back of the [South Durras] house that night [when the defendant and his friends stayed at the property], and I was showing [the defendant] a new pump I had put in. [The defendant] and his friends had been obnoxious and drunk the whole time they were down [in South Durras], and I was aware that [the defendant] had a new girlfriend. I mentioned the divorce papers that I had been holding onto and we had a conversation to the following effect: Me: 'I want a divorce'. [The defendant]: 'Why do we have to, it's not going to change anything, can't you just hold off on it?' I thought about this. [The defendant] then said: 'I was going to transfer all my share of the house to you and [the second plaintiff], but Bruce [the defendant's brother] talked me out of it because he is frightened that [the second plaintiff] will hook up with some lady and she will go him halves and you will lose the house. I will transfer my interest in the house [to the second plaintiff] when he turns 21'. 56. Because [the defendant] said he would transfer his interest in the house when [the second plaintiff] turned 21, I decided not to pursue a divorce at that time. I heard from [the defendant's] mates joking 'Jude [the defendant's new partner, now his wife] wants to marry you? You're still married!' I thought maybe part of the reason he didn't want to get divorced just yet was because it was an easy excuse for him not to marry his new girlfriend. 57. [The defendant] and I were eventually divorced in 2000. I did not apply for orders for adjustment of property in the Family Court because [the defendant] told me he would transfer his interest in the house to [the second plaintiff] when he turned 21. ... 62. After [the defendant] left [South Durras], he made no financial contribution to [the second plaintiff's] maintenance. 63. I thought [the defendant] was in a bad mental state and I did not think it would be fair to pursue child support from him. After promising to transfer his share in the house to [the second plaintiff], I wasn't worried about it as I thought that would make up for it. 64. Since [the defendant] left, I have made improvements to the South Durras Property. A lot of them were done long ago. [The defendant] has not made any contributions to the property since he left... 72. After [the second plaintiff] turned 21, I started trying to speak with [the defendant] to organise to have the house transferred to [the second plaintiff], but he has refused to do it. [Emphasis added]" 58The essence of the second plaintiff's evidence on the same topic can be found in an affidavit he swore on 18 June 2013: "9. While I was visiting my father he spoke to me on several occasions.... This would usually be when he had been drinking and he would get sentimental. On such occasions he said to me words to the effect of 'When you're 18 I'll transfer my half of the house to you', 'One day, when you are 18 this will all be yours' and 'When I am gone, this is all yours'. My father didn't say this on every occasion that I visited him, however it occurred on most of my visits to see him in Queensland. 10. On the first occasion that my father spoke to me about an arrangement he had with my mother I returned home from visiting my father and discussed what my father had said with my mother. When I spoke with my mother about the conversation she said to me words to the effect of 'Yes that is the plan when you turn 18, that is what is happening with the house'. ... 12. In addition to the conversations I had with my father face to face about the house at South Durras and the arrangement he had with my mother, we also had several conversations on the telephone.... He said words to the effect of 'That place down there will always be your mother's home' and 'Giving you a share of the house is that [sic] I can do for you'. 13. At some point in time I became aware that the arrangement had changed and the interest in the house was meant to be transferred to me when I turned 21 rather than when I turned 18. [Emphasis added]" 59In a subsequent affidavit (sworn 17 September 2013) the second plaintiff supplemented this evidence as follows: "11. When he mentioned the house at South Durras [the defendant] said words to the effect of 'My share of the house to go to you and your mother [sic]', and 'That is your mother's house for the rest of her life, I'm only doing this so it can't be taken away from your mother'... 12. Dad also said that he had just moved away to die - he said this on several occasions and would say words to the effect of 'When I left I pretty much came up here to die. I set you and your mother up and that is meant to be yours [the house at South Durras]'.... 14. I only remember him coming back to the house once after he left, when he came it was with his motorcycle club. On the occasion that he did visit with his motorcycle club, I remember overhearing a conversation between my father and my mother at the clothesline to the effect of - 'Can we just leave things the way they are at the moment I don't want you to divorce me as then I might have pressure put on me to marry someone else. Let's just leave sleeping dogs lie'. [Emphasis added]" 60The following (taken from an affidavit sworn by him on 25 October 2012) is a summary of material evidence given by the defendant: "35. Between 1988 [when the first plaintiff and the defendant sold their commercial property at South Durras] and 1992 I had little contact with [the plaintiffs]. [The first plaintiff] and I agreed that [the second plaintiff] would spend every alternate Christmas with me. I cannot recall how often these arrangements were put in place by [the first plaintiff] and me. 36. In 1992, I travelled to Canberra for the unveiling of the Vietnam Veterans' War Memorial. After the ceremony in Canberra, I travelled to South Durras to see [the plaintiffs]. I was accompanied by two other couples. We stayed overnight. I spent most of my time at the South Durras property playing with [the second plaintiff]. I am aware that [the first plaintiff] claims we had a conversation regarding me transferring my interest in the South Durras property to [the second plaintiff]. I deny any such conversation taking place. I recall the time spent there to be very friendly and welcoming with no discussion regarding the South Durras property or transferring property to [the second plaintiff] who at that time in 1992, was only 12 years of age. 37. Between 1992 and 2009, I do not recall there being any discussions between [the first plaintiff] and me about the South Durras property. I was content for [the first plaintiff] to live in the property with [the second plaintiff]. The property was unencumbered and [the first plaintiff] was able to live there very cheaply, she did not have to pay rent. [The first plaintiff] was only responsible for paying the rates on the property. 38. I considered this to be a very good arrangement for [the first plaintiff], I and [the second plaintiff]. I was unable to pay [the first plaintiff] and [sic] financial support for [the second plaintiff] as I had a very limited income. I was aware that [the first plaintiff] was a nurse and her income was far greater than mine. I believed I was making a significant contribution to [the plaintiffs] by them residing in the jointly owned property. I was interested in ensuring that [the second plaintiff] had stable accommodation and did not want to the property to be sold. I was content for [the plaintiffs] to remain living at South Durras.... 40. I am aware that [the first plaintiff] alleges that when [the second plaintiff] was 21 that she contacted me to request that I transfer the property to [the second plaintiff]. I deny such a conversation ever taking place and say there were no discussions between [the first plaintiff] and me. 41. I did have some discussion with my brother Bruce regarding a property settlement in 1988. However, these were not pursued and to the best of my knowledge there was no conversation between [the first plaintiff] and me as alleged. ... 70. I deny that I have made any representation to [the first plaintiff] in relation to the South Durras property to [the second plaintiff] or to [the first plaintiff] which would result in [the first plaintiff or the second plaintiff] obtaining an interest in property superior to that which I hold as co-proprietor... [Emphasis added]" 61By an affidavit sworn on 29 August 2013 the defendant specifically denied the evidence here extracted from the second plaintiff's affidavit. In the course of his denials, he (the defendant) wrote as follows: "7. ... I deny that I said to [the second plaintiff] that I'd transfer my half of the house to him when he was 18. I would not have made a statement that I would transfer the house at South Durras because that was never my intention and because this would be against everything I believe in. I did frequently use the phrase that 'nothing is for nothing' when talking to [the second plaintiff] because I did my best to impress on [him] when he was growing up that you have to work hard for things and not expect things to be given to you. ... 10. ... I reject the allegation that [the second plaintiff] and I ever discussed the transfer of the South Durras property to him either in person or on the telephone. I agree that I may have said words to the effect that his mother would 'always be able to live there' as this was always my intention. I was not able to provide financial support [for the second plaintiff] following separation due to my ill health and because I had a very limited income. I believed I was making a significant contribution to [the plaintiffs] by making available the property at South Durras and by ensuring that they received the benefit of living in the South Durras property which was unencumbered. It was important to me that [the second plaintiff] had stable accommodation and I did not want the property to be sold. I was content for [the plaintiffs] to remain living at South Durras. Whilst it was my intention for [the plaintiffs] to have the use of the South Durras property it was never my intention to relinquish my rights to the property. I always understood that either [the first plaintiff] or I would eventually be the sole owner of the property, depending who was the survivor of the two of us. 11. ... I ... say that no arrangement existed for the transfer of the property. The only arrangement which existed was that [the plaintiffs] were able to remain living in the property. ... [Emphasis added]" 62The defendant's fatherly advice to his son, that "nothing is for nothing", is profoundly correct in many contexts; but it is not universally true in its application to relationships between members of family. As far as it goes, the evidence suggests that the defendant may have benefited from generosity on the part of his father, as part of a mutually beneficial relationship, and (according to his personal circumstances) he has generally manifested a desire to display generosity towards his own son, the second plaintiff. 63I do not, here, set out the detail of conflicting evidence of the second plaintiff and the defendant about prospective property dealings between them (including a transfer of title to the South Durras property) when, in 2002, they had a major falling out. Suffice to say that, by that time, and evidently to the surprise of the defendant, there was more bad blood between father and son than either appears to have hoped. 64Some fruit does not fall far from the tree. At the time of their falling out the second plaintiff was on active service, with the Australian Army, in East Timor. He has since left the Army. 65Although the defendant's brother gave evidence, and was broadly supportive of the defendant, it is not necessary here to set out his evidence in a structured way. He gave his evidence in a professional way, striving for detachment and conscious of tensions within the family. 66A sufficient summary of his evidence (albeit, by no means, a complete one) may be taken from his cross examination: "Question: Have you had discussions with the [first] plaintiff about her belief about what your brother [the defendant] had agreed to do? Answer: I have had discussions with [the first plaintiff] about the house and her comments on how things ought to be done, not agreed to be done, because I would then have a conversation with [the defendant]. I am in the middle of this, [your] Honour. The conversations from one person, conversations from another person, and I am just saying, 'It is not my problem. You have to fix it up'. But the overriding thing from [the defendant], which he always said was that he wanted the property kept in both their names until one of them died. The house would be there for [the first plaintiff] to live in. [The second plaintiff], who was only young at the time, [the second plaintiff] to grow up in safe and secure, somewhere for them to live. If [the defendant] died first, we all assumed he would because he certainly wasn't well and at one point he was suicidal - if [the defendant] dies first, the house ends up to [the first plaintiff] and she can do what she wants with it. No doubt, [the second plaintiff] would get it. If [the first plaintiff] dies first, well, it comes to [the defendant] and [the defendant] was then going to give it to [the second plaintiff] in his will, but he was adamant he never wanted it sold and he was adamant he thought that was the best way to structure the transaction. That is the conversation I am getting from [the defendant] all the time. Conversations [the first plaintiff] might have had to me were slightly different, but I don't remember the exact detail of them, but she would ring me from time to time. ..." THE COURSE OF THE PROCEEDINGS 67The defendant's present perception (as manifested in his cross examination) is that his son is, in these proceedings, intent upon getting his inheritance before his parents are dead. 68Because of that perception, and for completeness, I record that the second plaintiff's joinder in the proceedings came about by an expression of concern, on my part, about a need for his joinder. His parents were content for the proceedings to run their course with his role confined to that of a witness, and a third party beneficiary of an alleged constructive trust. He was content to leave the adversarial roles to them, supportive though he has always been of his mother, and expectant as he has always been of personal benefit from the proceedings. 69It is common ground between the family of three that, if relief is granted in the principal proceedings, the first plaintiff will be allowed to live out her life (with her current husband) at the South Durras property, with the second plaintiff coming into full possession of his inheritance on or after his mother's death. 70It is also common ground that, if the cross claim were to prevail, the parties should be allowed an opportunity to resolve their ongoing differences informally before a formal appointment of trustees for sale. 71At no point has the defendant taken an objection to the constitution of the proceedings, or contended that a trust for the benefit of the second plaintiff could not emerge from dealings between the first plaintiff and the defendant. EVALUATION OF THE EVIDENCE 72Cross examination of the first plaintiff made headway, in part, because the conversation of 1992 to which she deposed in her affidavit of 5 October 2012 appears to have provided the foundation for a subsequent, verified pleading (Exhibit D2), since amended, which placed the conversation in 1986, rather than 1992. 73The pleading remains inelegant. However, I accept the first plaintiff's evidence that she and the defendant had more than one conversation to similar effect, and that there was, specifically, such a conversation on the occasion of the defendant's 1992 visit to South Durras. It may not have been, precisely, as the first plaintiff recounts it in her affidavit; but I am satisfied that it was, more or less, as she has there recounted it. 74In my assessment, whatever precisely passed between the first plaintiff or the second plaintiff (on the one hand) and (on the other) the defendant, the defendant said enough to convey to the plaintiffs, and for them reasonably to hear him say, that he would transfer his interest in the South Durras property to the second plaintiff when the second plaintiff attained 21 years of age. 75With good cause, the defendant felt under an obligation to each of the plaintiffs. If in any way he erred in communicating his subjective mind about the South Durras property to them, the likelihood is that he erred on the side of telling them, as he must have known, what they wanted, and perhaps needed, to hear. 76The Court must assess the objective evidence objectively. Whatever mental reservations the defendant may have had, and given voice to in discussions with his brother, these proceedings turn on what he said to the plaintiffs, and what he led and allowed them to believe. They were in need of assurances about their security in the family home. He met that need conscious of a sense of obligation owed to each of them. 77 The second plaintiff was (and, if truth be known, remains) an object of continuing pride, his son. The first plaintiff sustained him, and magnanimously let him go his way, in very dark days following his breakdown. Then, and thereafter, she shouldered burdens which they both reasonably regarded as his to bear. She was generous with him, not only in social terms, but also in the division of communal property other than the family home. That division of property facilitated his acquisition of property in Queensland. 78Even now, he explains and justifies his retention of title to the South Durras property, in part, by reference to a need to protect both plaintiffs, as if they continue to need (though they do not in fact need) his protection. 79His reluctance to divest himself of title to the property appears, at least in part, to have been a function of his growth away from the plaintiffs. 80Although his brother's evidence manifests, as between brothers, a consistency of resolve to remain on the title, my impression of the evidence as a whole is that the defendant's focus has shifted over time: from emphasis on protection of the plaintiffs; to recognition of a chance that he might gain, and in his senior years need, an opportunity to benefit from legal rules governing survivorship of joint tenants. This shift in focus is not unnatural. A reluctance to "let go" what has been long held is a common human condition. 81In an affidavit sworn on 16 September 2013 the defendant reveals something of the shift that took place in his thinking: "26. [At or about and immediately following the time of separation] I did not envisage that the [South Durras] property would need to be sold as I understand that [the first plaintiff] agreed with the situation continuing at the time and to the best of my recollection there was not any discussion between [her] and me about the transfer of the South Durras property before 2000. It was only in early 2000 when [the first plaintiff] began to request that I transfer the property to her or [the second plaintiff] that I understood that she had a different intention. I remained very reluctant to pursue a sale of the property and continued to believe that it was in the best interests of both [the first plaintiff] and me that we leave the arrangements in place. 27. After [the second plaintiff] turned 21 [in January 2001] and certainly after 2003 [by which time the first plaintiff had written to the defendant's brother asking him to intervene in securing a transfer of title and the second plaintiff and the defendant had fallen out] I realised that it was more likely that at some point the property would need to be sold. At that point I began to consider the South Durras property would be a likely source of financial security for me in the future. ... 29. Since 2009 [during which year the first plaintiff had had a lawyer serve a letter of demand] I have taken the view that [the first plaintiff] should acquire my interest in the South Durras property. I have formed this view now that she and [her present husband] are living in the property that [the second plaintiff] is independent.... 30. I have sought to avoid conflict with [the first plaintiff] over the South Durras property and did not have the financial means to pursue litigation. I had hoped that we could have resolved things amicably and was prepared to allow [the first plaintiff] to continue to live in the property so long as she continued to pay the rates and insurances on the property between 2000 and 2012. I was prepared to accept that if I died the property would transfer to [the first plaintiff] but likewise if [the first plaintiff] died before me the property would transfer to me. [Emphasis added]" 82The South Durras property was never, in any sense, the defendant's home after 1986. It was, in every sense, the plaintiffs' home. It was, for him, an incident of his marriage break-up. It was, for them, an essential expression of what they retained from the remnants of their family life with him. It was, for them, their central symbol of security, an ever present physical reality in their lives. 83In a calculated manner, the defendant kept the plaintiffs quiescent throughout the years he may have been obliged to provide maintenance for them by representing to them, and by encouraging them to believe, that the South Durras property was their home, not his, and that his was a role protective of their interests, not an assertion of a conflicting interest of his own. 84The first plaintiff, in particular, would not have tolerated his continuing participation in her life (as a co-owner of her family home) but for her belief, based on reasonable grounds, that his interest in the property would pass to the second plaintiff (or to her, with the consent of her son) on attainment of the age of 21 years. The second plaintiff's disillusionment with his father, in adulthood, is a reflection of long-held, reasonable expectations disappointed. 85I accept that the first plaintiff, personally and as a guardian of the second plaintiff, acted in reliance upon the defendant's assurance that he would divest himself of title to the South Durras property by refraining from a timely application to the Family Court for family law relief. She lost an opportunity to secure her future, and that of her son, by acting on the faith of the defendant's promise to transfer his interest in the land to her or the second plaintiff. It is not necessary for her to prove that she would have been better off had she made an application for family law relief within due time: Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 486 [5]; Waddell v Waddell [2012] NSWCA 214 at [65]-[66]. 86A significant (albeit not the only) factor in the plaintiff not making a timely application for family law relief was her reliance (not unreasonable in the circumstances of this case) on the defendant's assurance of a transfer of title to their son upon the son's attainment of the age of 21 years. 87The defendant's subsequent denial of any obligation to transfer title, and his assertion in these proceedings of an entitlement to insist on a sale of the South Durras property for his personal benefit, is a departure, to the detriment of the plaintiffs, from an important assumption upon which he, by his representations to them and by his letting them alone, encouraged the plaintiffs to ground their affairs. 88It was unconscionable for the defendant to resile from a promise, upon which he had induced the first plaintiff to rely, exposing the plaintiffs to detriment in the event of his non-compliance with the promise, retaining for himself the benefit of the first plaintiff's reliance on the promise. 89What attracts the intervention of equity, according to principles governing estoppel in relation to a non-contractual promise to grant an interest in land, is an assurance or encouragement which creates an expectation that an interest will be granted, and conduct in reliance upon that expectation; it is sufficient to give rise to the equity that, between the parties, the expectation is created and acted upon on the basis that it will be made good: Tadrous v Tadrous [2012] NSWCA 16 at [38]. 90Were the defendant permitted to depart from the assurances and encouragement given to the plaintiffs about the state of the title of the South Durras property, they would suffer a detriment (including disturbance of the first plaintiff's occupation of the property, and the second plaintiff's loss of an interest in the property or proceeds of sale of the property) of such a nature that warrants a grant of equitable relief. The Court should, prima facie, enforce a reasonable expectation which the defendant created or encouraged: Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 494 [63]. 91That prima facie position is not displaced by the defendant's defence of laches. Admittedly, the plaintiffs' delay (between 2001-2012) in the institution of proceedings may have been significant. However, the defendant has suffered no material prejudice by the delay. He was, throughout the period, conscious of the plaintiffs' demand that he divest himself of title. He was content to allow the first plaintiff to remain in occupation of the South Durras property, as her family home, meeting all expenses associated with it. Nothing that the plaintiffs have done, by inaction or standing by, place the defendant (or a third party) in a position in which it would be inequitable and unreasonable to place him if the remedy sought in these proceedings were granted: Orr v Ford (1989) 167 CLR 316 at 337 et seq (especially 340-341); Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-240; Ciaglia v Ciaglia [2010] NSWSC 341 at [36]. 92The defendant contends that the Court should proceed on the basis that any equity to which the first plaintiff may be entitled has been exhausted by his acquiescence in her ongoing occupation of the property "rent free". That contention cannot be accepted. It ignores both the nature of her right of occupation as a co-owner of the property, and the nature of the defendant's promise to divest himself of title to the property in favour of the second plaintiff. It was unconscionable on the part of the defendant not to transfer title, as promised, in 2001. It remains so today. ORDERS 93Subject to allowing the parties an opportunity to be heard as to the form of the relief to be granted to the plaintiffs, I propose to make the following orders: (1)DECLARE that the defendant holds his interest in the property in Dilkera Street, South Durras in the State of New South Wales, being Lot 16 of Section 5 in Deposited Plan 758369 and being the whole of the land contained in Certificate of Title Volume 5120 Folio 9 ("the property"), on trust for the second plaintiff. (2)ORDER that the defendant, within 28 days of these orders being made, execute all such documents (including a memorandum of transfer in registrable form) and do all such things as are necessary to transfer his interest in the property to the second plaintiff. (3)ORDER (pursuant to the Civil Procedure Act 2005 NSW, s 94) that, if the defendant does not comply with Order 2, a Registrar of the Court may execute a memorandum of transfer, in registrable form, for the purpose of effecting a transfer of the defendant's interest in the property to the second plaintiff. (4)ORDER that the cross claim be dismissed. (5)RESERVE liberty to apply for further relief in the implementation of these orders. (6)ORDER that the defendant pay the costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2014