Property Law Act 1969 (WA), s 34, s 35

Supreme Court Act 1935 (WA), s 25(7)

Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

Del Borrello v Freidman & Lurie [1999] WASC 17

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Eng Mee Yong v Letchumanan [1980] AC 331

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Interhotel Australia Pty Ltd v Austotel Pty Ltd, unreported; SCt of WA; Library No 6787; 15 July 1987

Mazzuchelli v Mazzuchelli & Anor [2006] WASC 124

Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

1 The plaintiff, Anselm Joseph Mazzuchelli, commenced proceedings by writ of summons dated 30 September 2005 in which he sought to substantiate a claim to a perpetual licence affecting land adjoining his farming property at Yuna, north of Geraldton. The two pieces of land the subject of the plaintiff's claim are known as Victoria Locations 4996 and 4997, being land registered in the name of the plaintiff's brother, Kieran Benedict Mazzuchelli. The latter is named as the first defendant in these proceedings.

2 The legal proceedings arose because the first defendant had in mind to sell the farming property belonging to him (which included the subject locations) to a third party, Magnolia Holdings (WA) Pty Ltd. Owing to the lapse of caveats previously lodged against the subject locations, the plaintiff was obliged to commence legal proceedings with a view to obtaining an order that further caveats be lodged on his behalf and for orders substantiating his claim to an estate or interest in the subject locations. The plaintiff contends that he is entitled to make use of the subject locations; that pursuant to an alleged perpetual licence, he is at liberty to use various improvements on Location 4996 including sheep yards and sheds and to work Location 4997 for wheat production and the grazing of stock.

3 The first defendant was unable to proceed with the proposed contract of sale to Magnolia Holdings owing to the presence of the legal proceedings and the transaction fell away. The plaintiff's application for orders that further caveats be lodged was brought on for hearing with a view to preserving the status quo and preventing any dealing with the subject locations by the first defendant until the trial of the action. The plaintiff was represented at the hearing by an experienced legal practitioner. I will call this the "initial hearing".

4 The matters in issue at the initial hearing included an application to amend the statement of claim so that all matters bearing upon the plaintiff's claim to an estate or interest in the land would be before the Court. The plaintiff contended that he had an estate or interest in the land by way of a perpetual licence of the kind mentioned earlier pursuant to principles of law and equity concerning equitable proprietary estoppel or as an easement arising from the conduct of the parties. For ease of reference, I will henceforth refer to the various rights contended for by the plaintiff in his prayer for relief collectively as the "alleged licence".

5 I note in passing that the various rights embraced by the alleged licence in respect of the subject locations were not said to include a pre-emptive right or first option to acquire the subject locations. The prayer for relief in the original statement of claim, and as described in the minute of proposed amendment to the statement of claim did not seek the enforcement by the plaintiff of any pre-emptive right or first option to purchase, although, in par 14 of both documents, the narrative includes an allegation that the first defendant knew of the rights comprising the alleged licence and so agreed to grant to the plaintiff the first option to purchase the lands (that is, the subject locations) from the first defendant in the event of sale. I will return to this aspect of the matter in due course.

6 On 29 June 2006 I handed down a lengthy judgment addressing the plaintiff's application for an order that further caveats be lodged on his behalf against the subject locations: Mazzuchelli v Mazzuchelli & Anor [2006] WASC 124. The reasons for decision speak for themselves and I therefore do not see any need to traverse the full range of matters dealt with in the 2006 judgment. I will simply touch upon those features of the judgment which bear upon the present application.

7 I observed early on in the 2006 judgment that the second defendant (the Registrar of Titles) had been served and was content to abide the outcome of any ruling made by the Supreme Court. Accordingly, for ease of reference, I will again simply refer to the first defendant as the "defendant".

8 In the course of the 2006 judgment I noted that, in order to obtain an order for lodgement of further caveats, the plaintiff had only to make out an arguable case that he had an estate or interest in the subject locations of the kind contended for. The plaintiff's application to amend the statement of claim was allowed. However, in the end, I was not satisfied that an arguable case had been made out and the plaintiff was refused leave to lodge or extend the operation of caveats affecting the subject locations.

9 In summarising the history of the matter, I noted that the subject locations formed part of a family farm known as Dartmoor. In 1990 the original farm was sold to the plaintiff and the defendant. In 1991, the farm was divided into two parts, being 7000 acres known as Rainmore, which were transferred to the plaintiff, and 4000 acres known as new Dartmoor, which were transferred to the defendant.

10 The subject locations (and thus the subject improvements on Location 4996) finished up as part of the defendant's holding. However, there was evidence before me that in the years thereafter the plaintiff had a key to the main gate of the defendant's farm and was at liberty to and did make use of the subject locations and the subject improvements as an adjunct to the farming operations on his own farm.

11 I noted also that the effect of s 34 and s 35 of the Property Law Act 1969 (WA) was that no interest in land was capable of being created except by writing, save for the creation or operation of resulting, implied or constructive trusts and the law relating to adverse possession and part performance. In the present case, the plaintiff could not point to any written agreement or specific oral agreement conferring an estate or interest in the disputed land. I observed that the plaintiff's description of a mutual first option arrangement (taken at its highest) was not sufficiently certain in its terms to be characterised as an agreement intended to confer an interest in land.

12 The plaintiff's pleaded case endeavoured to overcome these difficulties. The alleged licence was said to arise from an equitable proprietary estoppel; that is, the defendant was said to have caused the plaintiff to assume that the defendant would never revoke the licence. In those circumstances, the plaintiff argued, it would be unconscionable for the defendant to revoke the licence or to act in a manner which might prevent use of the land pursuant to the licence; this meant that the plaintiff had an estate or interest in the land.

13 Ultimately, I held that the facts and matters relied upon by the plaintiff were not sufficient to give rise to an arguable case for the alleged licence based upon an equitable proprietary estoppel. I held that the plaintiff's use of the subject locations arose out of and was consistent with an informal family licence arrangement. Further, I could see nothing in the circumstances which might have induced the plaintiff to believe that he was to obtain a permanent right of user in the nature of an easement. That being so, it could not be said that the defendant encouraged or was responsible for a mistaken assumption or acted unconscionably in exercising his entitlement as the owner of the supposedly servient property to revoke the licence.

14 It was against this background that the defendant by a chambers summons dated 30 August 2006 applied for an order pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) that there be summary judgment for the defendant or otherwise that the plaintiff's claim in its entirety be dismissed.

15 The defendant's application for summary judgment was supported by the affidavits of Kieran Benedict Mazzuchelli sworn 30 August 2006 and 22 November 2006. The plaintiff filed an answering affidavit sworn 4 December 2006. In addition to these affidavits I had before me also the affidavits of the parties and evidentiary materials described in the 2006 judgment. I note in passing that on 20 September 2006 the plaintiff had filed a notice that he was now acting in person and thus he appeared on his own behalf at the hearing of the present application.

16 I digress briefly to note that the defendant's application included an application for leave to bring the application for summary judgment out of time. Further, the defendant sought in the alternative to his application for summary judgment that the plaintiff's claim in its entirety be struck out pursuant to O 20 r 19 on the ground that it disclosed no reasonable cause of action and that judgment be entered for the defendant accordingly.

17 Order 16 rule 1 provides that any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment. The Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings may order that judgment be entered for the defendant with or without costs or that the plaintiff shall proceed to trial without pleadings. The rules require that the application be supported by affidavit verifying the facts upon which the application is based. By O 16 r 3 unless the Court otherwise directs, an affidavit for the purposes of an application of this kind may contain statements of information or belief with the sources and grounds thereof.

18 By O 16 r 2 the plaintiff may show cause against such application by affidavit. Likewise, such an affidavit may contain statements of information or belief with the sources and grounds thereof.

19 The decided cases indicate that a case must be very clear indeed to justify the summary intervention of the Court to prevent the plaintiff submitting his case for trial in the ordinary way, and once it appears there is a real question, whether of fact or law to be decided, and that the rights of the parties depend upon it, it is not competent for the Court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

20 The power given by the Rule to enter judgment for the defendant makes express provision for what is, in any event, the Court's inherent jurisdiction to protect its process from abuse by summarily disposing of an action as frivolous or vexatious in point of law if it is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92.

21 However, the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99. Moreover, the Court should be astute not to risk stifling the developments of the law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373.

22 The High Court observed in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 that the power to order summary judgment must be exercised with exceptional caution, especially in a case where the ultimate outcome depends on the resolution of a dispute of fact. However, if the plaintiff relies upon an affidavit it is necessary for it to condescend to particulars: Interhotel Australia Pty Ltd v Austotel Pty Ltd, unreported; SCt of WA; Library No 6787; 15 July 1987.

23 Put shortly, then, the power to order summary judgment should be reserved for a case which is so obviously untenable that it cannot possibly succeed. In this kind of application the version of facts put forward by a plaintiff, if not inherently incredible, should be accepted for the purposes of this application as if they were the facts that would be ultimately accepted at the trial. However, this does not mean that the Court will accept every statement made in an affidavit, however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same document, or inherently incredible: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 per Lord Diplock. See also Del Borrello v Freidman & Lurie [1999] WASC 17 at [4].

24 The plaintiff's claim for equitable relief is now reflected in a court document filed on his behalf by his then solicitor. This is described as the amended statement of claim pursuant to the order of the Court made on 29 June 2006.

25 I summarised the nature of the relief sought by the amended statement of claim in earlier discussion. The plaintiff does not expressly by his pleading seek declaratory relief aimed at establishing that he has an estate or interest in the subject locations in terms of the alleged licence or that the defendant and his successors in title are bound by the same. However, the orders sought are essentially to that effect. I am conscious that by s 25(7) of the Supreme Court Act 1935 (WA) the Court shall have power in the concurrent administration of law and equity to grant such remedies as the parties appear to be entitled to. Accordingly, for the moment, I am not minded to let a lack of precision in describing the relief sought stand in the way of a ruling upon the substantive issues.

26 The affidavits filed recently by the parties add little to the affidavit evidence that was previously before me save for some further assertions bearing upon the disputed option to purchase issue which I will return to in a moment.

27 The defendant by his affidavit sworn 30 August 2006 provided an explanation for his delay in making the application for summary judgment and asserts that in allowing the plaintiff to enter the subject locations he did not intend to charge or burden the same. He said that there was no written or specific oral agreement in existence to support the plaintiff's claim and asserted that he revoked the plaintiff's licence with respect to the subject locations with the result that the plaintiff has no further entitlement to enter. From the outset there was only an informal family arrangement between the parties and the plaintiff acquired no estate or interest in the land by agreement or as a consequence of the defendant's conduct.

28 The defendant confirmed that Magnolia had ceased to have any interest in the land. Further, as a result of continued unresolved difficulties with the plaintiff and in consultation with Magnolia the plaintiff was offered the new Dartmoor property on exactly the same terms and conditions and price as Magnolia agreed to pay. However, the plaintiff did not and or could not match the offer and acceptance of Magnolia and declined the defendant's offer to sell Dartmoor to him at the same price and upon the same terms as appeared in the offer and acceptance.

29 The plaintiff by his affidavit sworn 4 December 2006 acknowledged that his initial and subsequent offers to purchase Dartmoor were less than the Magnolia Holdings offer as the plaintiff's offer took into consideration the marginal farming area and that certain of the land was infested with spray resistant weeds.

30 The plaintiff referred also to the alleged first option to purchase. It will be convenient to address that matter separately.

31 It will be useful to begin by reviewing earlier materials bearing upon this matter before turning to the further affidavit evidence.

32 The plaintiff's amended statement of claim begins by describing the subject locations and the nature of the alleged licence. It refers also to the lodgement of certain caveats by the plaintiff. The amended statement of claim then continues as follows:

"8. In 1990, the Plaintiff and First Defendant made an agreement and/or arrangement, that the Plaintiff would have free access to and usage of the lands and facilities located on Victoria Locations 4996 and 4997.

9. From 1990 until the present time, the First Defendant, by his conduct, or, alternatively, by his passive inaction, has encouraged the Plaintiff to expend money on improvements and allowed the Plaintiff regular access to and occupation of the lands, for the reasons as stated in paragraphs 4 and 6, above.

10. The Plaintiff, at all material times, had a belief and expectation that he had an interest, or, would obtain an interest in the lands.

11. The First Defendant, at all material times, lived on the lands.

12. By reason of the Plaintiff's presence and conduct on the lands, and the fact that the facilities and usage of the lands were essential for the Plaintiff's farming, the First Defendant knew of the Plaintiff's belief and expectation that he (the Plaintiff) had an interest in the lands.

13. The Plaintiff acted upon his belief and expectation, as stated above.

14. The First Defendant knew of the Plaintiff's rights and so agreed to grant to the Plaintiff the First Option to purchase the lands from the First Defendant, in the event of sale.

15. The First Defendant acquiesced to the Plaintiff's conduct and belief that he (the Plaintiff) had this interest in the lands.

16. The Plaintiff acted upon the assumption that he had a licence to enter, occupy and remain on the said lands, as he required.

17. The First Defendant induced the Plaintiff to believe and rely on the assumed state of affairs.

18. The assumed state of affairs between the Plaintiff and First Defendant gave rise to the Plaintiff's entitlement of proprietary estoppel.

19. The First Defendant should be held to the assumption he created with the Plaintiff.

20. The Plaintiff seeks an Injunction of restraining the First Defendant from creating, disposing of, or, dealing with any estate or interest in the lands, until further Order of this Honourable Court."

33 I noted in earlier discussion that the plaintiff by his amended statement of claim does not seem to contend expressly that his purported estate or interest in the land arises out or is referable to the alleged first option to purchase agreement. Rather, his case seems to be that the alleged licence contended for is validated by the defendant's acquiescence in the plaintiff's long-standing access to and usage of the subject lands and the presence of a first option to purchase agreement is a persuasive piece of evidence that the plaintiff's association with the subject locations was intended to have a potentially enduring or permanent quality to it.

34 Moreover, the plaintiff does not descend to particulars of the agreement allegedly made. For these reasons, I concluded in the 2006 judgment that the plaintiff's description of the alleged first option to purchase agreement was not sufficiently certain in its terms to be characterised as an agreement intended to confer an estate or interest in land.

35 This matter was addressed in the defendant's affidavit sworn 18 November 2005. In that affidavit he referred to discussions in 1990 between his parents, his brother (the plaintiff) and himself and a decision whereby the plaintiff and he would each purchase certain locations of the farm. According to the defendant, the plaintiff offered to purchase approximately 7000 acres of the farm which contained all of the four farm water bores leaving the defendant to purchase the balance thereof comprising of approximately 3000 acres including location 4996 on which was situate the homestead, silos, shearing sheds, shearing yards and fuel tanks. He said that even though he was purchasing for about the same price a much smaller acreage than that of the plaintiff and had significantly less arable land this was compensated for by the fact that Location 4996 contained the subject improvements.

36 The defendant said at par 37 of his affidavit that during the discussion there was never any mention of a mutual first option to purchase each other's acreage either between the plaintiff and himself or at all. He believed that he was purchasing the land totally free of all encumbrances. As a result of the discussion he went to see the plaintiff's lawyer, Robert Glynn, who prepared the paperwork. At the lawyer's office he again gave the plaintiff the option of purchasing the entire farm but the plaintiff again declined. To the best of his recollection the plaintiff and he then each instructed Mr Glynn to prepare an offer and acceptance to purchase the separate locations of the farm that had been agreed upon with the father of the parties.

37 In his responsive affidavit sworn 19 December 2005 the plaintiff disputed the allegation that his brother (the defendant) paid in his price for the improvements. The homestead and facilities in question were the only facilities and homestead on the original Dartmoor farm and it was the plaintiff's understanding that the facilities would be used by him in the continuation of his farming. The plaintiff then said this:

"25. As to paragraphs 37 through to 40 inclusive, I dispute the first defendant's statement that 'at the plaintiff's lawyer's office' he gave me an option to purchase the entire farm. At the time, as I have stated above, I did not have the means to purchase the entire farm and I recall speaking to the first defendant about an option of purchasing each other out, at the time and in the event that either one of us wanted to sell. In other words, I discussed with Kieran the opportunity that he and I would have first option to purchase each other's property, on the basis that that would retain the entire family farm in the future. I had reasoned at the time that this was important on the basis that the two small farms that we both had were really too small to make a decent profit with and that one of us should always be given the opportunity of making the entire family farm a viable and profitable proposition, in the future. I recall that the first defendant agreed to this proposition at the time 'at the plaintiff's lawyer's office' and that is what I believe he is confused with and is referring incorrectly to as being my option to purchase the entire farm as stated in paragraph 40."

38 In his later affidavit sworn 22 November 2006 the defendant said that he totally rejected and denied that there ever was any agreement that the plaintiff would be offered first option to purchase Dartmoor or at all.

39 In his recent responsive affidavit sworn 4 December 2006 the plaintiff said this at par 2:

"It was verbally agreed, in the offices of Glynn & Grey, in the late 1990 when Kieran and I were discussing the division of my father's property, there would be a reciprocal agreement that the other party would be given the first option to purchase any of the said property, should a sale be contemplated. At that time I was living in the house and using the sheds, I had built and paid for. It is very apparent to continue farming I would need these facilities."

40 It is apparent from the plaintiff's amended statement of claim (being a pleading prepared by an experienced solicitor in response to the plaintiff's instructions), and from the affidavits before me, that the alleged first option to purchase was not made or evidenced in writing. This was acknowledged by both parties at the initial hearing (prior to the 2006 judgment) and at the later hearing concerning the defendant's present application for summary judgment.

41 It follows, having regard to the provisions of the Property Law Act mentioned earlier, that such an agreement, prima facie, cannot be relied upon by the plaintiff to create an estate or interest in the subject locations. The rule that no interest in land is capable of being created except by writing signed by the person creating the interest can only be overcome in the circumstances of the present case if the plaintiff was able to point to facts and matters giving rise to a constructive or resulting trust or an equitable proprietary estoppel.

42 I reviewed the principles bearing upon the latter issue at some length in the 2006 judgment and will not repeat them. In essence, as appears from the reasoning of the High Court in Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has played such a part in the adoption of the assumption that it would be unfair if that other party (in this case the defendant) were left free to ignore it. Equity will come to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption. However, the decided cases indicate that the representation or conduct relied upon by the plaintiff as giving rise to the assumption must be clear and unequivocal.

43 I noted in earlier discussion that on the face of the amended statement of claim in the present case the plaintiff does not expressly, in his prayer for relief, purport to be seeking to enforce the alleged option to purchase. It may be that no such plea was advanced because the pleader was conscious of difficulties in pleading out particulars of any alleged agreement or conduct by the defendant which would be sufficient to create a trust or to invoke the doctrine of equitable estoppel as a consequence of unconscionable conduct. As I have indicated, it seems from the amended statement of claim that the presence of an agreement "to grant to the plaintiff the first option to purchase the lands from the first defendant in the event of sale" (par 14) was being relied upon as part of the conduct attributed to the defendant which was said to underpin the alleged licence in that it contributed to the assumption or expectation on the plaintiff's part that he had permanent rights of usage in respect of the subject locations.

44 However, even if the amended statement of claim be construed more liberally and the reference to an injunction in par 20 of the claim be regarded, in effect, as a request for equitable relief akin to a request for declaratory relief that the first option to purchase agreement contended for is enforceable, there remains a lack of particularity which weighs against the grant of any such relief. The pleading does not set out facts and matters with particularity which might be thought to have created an assumption that the alleged option to purchase agreement would be honoured (notwithstanding the absence of writing) and that the defendant had departed from such an assumption in a manner that could be characterised as unconscionable.

45 It is apparent from my review of the legal principles bearing upon an application for summary judgment that considerable care must be taken before the power to enter summary judgment is exercised, especially when a crucial issue may turn upon disputed facts. Upon the hearing of such an application, the facts contended for by the plaintiff will generally be accepted, provided they are presented with particularity and are consistent with the surrounding facts. The plaintiff's claim must be shown to be untenable.

46 For the reasons set out at length in the 2006 judgment, I concluded that the plaintiff did not have an arguable case in support of his contention that he had an estate or interest in the land under and by virtue of the alleged licence. The further affidavits filed by the parties do not contain any evidence that causes me to alter that view.

47 To my mind, it follows from my finding that as to the alleged licence, the plaintiff does not have an arguable case that his case cannot be described as tenable. It does not have a real prospect of success.

48 I arrive at this conclusion by taking the plaintiff's case at its highest and upon the basis that the facts and matters he relies upon could be established by evidence given at trial. It is apparent from his own evidence that at all material times he acknowledged that the defendant was the registered proprietor of the new Dartmoor farm. He came and went upon the subject locations and utilised the improvements upon Location 4996 pursuant to a licence granted to him by his brother who he knew to be the registered proprietor of the lands in question. Thus, the crucial question was whether the defendant created or contributed to an assumption upon the plaintiff's part that the licence would be permanent.

49 For the reasons given in the June judgment I held that the defendant's acquiescence by the defendant to the plaintiff's access to and user of the subject locations was not sufficient to create an assumption that such rights would continue indefinitely. It was simply an informal family arrangement.

50 In strict analysis, as I have noted, it is not part of the plaintiff's pleaded case that pursuant to principles of constructive trust or equitable estoppel the alleged first option to purchase agreement is specifically enforceable, with the result that the presence of such an agreement can be taken as conferring permanent rights of user upon the plaintiff or an estate or interest in the land. Moreover, as I have indicated, even if the pleading were to be construed liberally, it is difficult to conclude, in the absence of writing or particulars of unconscionable conduct, even if the plaintiff's evidence about what occurred at the lawyer's office were accepted, that the alleged option agreement could either be enforced or be used to support the validity of the alleged licence. The alleged option agreement does not bear directly upon the creation of an assumption as to continuance of the alleged licence. Its only significance is in providing a possible avenue for continuance of the rights of user, but that depends upon the enforceability of the alleged option to purchase agreement. The facts and matters relied upon by the plaintiff are not sufficient to create an enforceable agreement, for the reasons I have given.

51 In my view, it follows from all of this that the plaintiff does not have any real prospect of succeeding in his claim, at least as presently presented, and that the defendant is entitled to summary judgment. The defendant by his affidavit evidence has provided a sufficient explanation for the delay in bringing the application and I consider that leave to proceed should be allowed.

52 The defendant will be granted leave to bring an application for summary judgment pursuant to O 16 r 2 of the Rules of the Supreme Court. In response to the chamber summons of the defendant dated 30 August 2006 I will order that there be judgment in favour of the first defendant and that the plaintiff's claim in its entirety be dismissed. I will hear from the parties as to whether any further orders or directions are required. As the plaintiff is presently unrepresented, I will hear from the parties as to whether a stay should be allowed for a period of 21 days so that the plaintiff can be properly advised as to his right of appeal.