His father said:
" OK. I will buy it for you. "
4 However, Sir Dennis did not buy the farm. The moneys for its purchase were provided by Cambouya, which obtained a cash advance of $194,560 from Talair Australia Pty Limited, whose loan account with Cambouya was credited accordingly. Sir Dennis, may have regarded Cambouya as an emanation of himself, but it was a separate legal entity, with its own liabilities and assets. I do not infer that Sir Dennis intended that Mr Buchanan should be the owner of the property. If it were Sir Dennis's intention that Mr Buchanan should be the beneficial owner of the property, there would have been no reason for the property to have been purchased by Cambouya.
5 Mr and Mrs Buchanan lived on Baxters from March 1988 until November 1999. They worked the property and made substantial improvements to it. The improvements included repairing the farmhouse, establishing a garden, arranging for the installation of a water tank, planting trees, fencing, eradicating prickly pear, and sowing pasture. Mr Buchanan also established a cattle herd. In his affidavit, Mr Buchanan deposed that from 1988 to 1999 he incurred and paid various farm expenses which he listed including council rates, insurance premiums, cattle purchase and cartage, workers' compensation premiums, farm supplies, vet expenses, repairs, fuel, and purchase of equipment and motor vehicles. However, as he also deposed, all of these expenses were paid by his drawing cheques on Cambouya's bank account. The expenses were incurred and paid by Cambouya.
6 Cambouya accounted for the acquisition and operation of Baxters. In the financial year ended 30 June 1988, it recorded an operating profit from the farm of $22,222. That profit was distributed to Mrs Della Buchanan, Mr John Buchanan and four other members of the Buchanan family. The distribution to Mr Buchanan was $5,000. In each of the following years the farm operated at a loss, and was so accounted for in the books of Cambouya.
7 In his tax return to 30 June 1988, Mr Buchanan declared a taxable income of $10,538, comprising the $5,000 distribution from the Buchanan trust and wages of $5,538 paid to him by Cambouya. That money was paid for his work on Baxters. He did not declare the income and expenses of the farm as being his income or expenses. His income tax returns are inconsistent with his having been the owner of Baxters and the farming operations conducted on it. His returns were prepared for him by Cambouya's accountants. However, I do not accept that he was ignorant of the income and deductions he declared. The Buchanan trust may well have been established for fiscal reasons and to ensure that Sir Dennis did not own assets that might be attached by creditors. But that does not mean that the companies and trusts which Sir Dennis established can be treated as if they did not exist. Although Mr Buchanan did not establish Cambouya or the Buchanan trust, he must have known that Cambouya and not he was deriving the income from the farm and incurring the expenses of running it. He cannot be heard to say that Cambouya was "really" his father. I do not accept that he did not know what income he was declaring.
8 In the year ended 30 June 1989, Mr John Buchanan was paid wages of $4,846 by Cambouya and $13,499 by Flightwest Airlines Pty Ltd ("Flightwest"). In the year ended 30 June 1990, he was paid wages of $17,999 by Flightwest and received other wages totalling $1,365. In the year ended 30 June 1991, he was paid $23,538 in wages by Flightwest.
9 Mr Buchanan did not work for Flightwest. It was a company whose shares were held by Baerami Holdings Pty Ltd. The shares in Baerami Holdings Pty Ltd were assets of the Buchanan trust. The wages were paid to Mr Buchanan for the work which he did on Baxters. The wages were not mere accounting entries. They were paid to Mr Buchanan, not credited to Cambouya's bank account.
10 In 1991, Mr Buchanan noticed a property for sale. It is now known as Goroka. Sir Dennis arranged for the property to be purchased by Cambouya. The purchase was completed on 16 September 1991. The purchase price, before adjustments, was $700,000.
11 Mr Buchanan claims that he paid $27,000 towards the purchase of Goroka. The basis for that claim is a note in the handwriting of Sir Dennis on a letter from Messrs Sly & Weigall, Lawyers, reporting on the settlement of the purchase. Sir Dennis recorded "John paid $27,000". In his affidavit, Mr Buchanan said that some or all of the $27,000 may have come from Cambouya's bank account and the rest was his or his wife's own money. The settlement statement from Sly & Weigall shows that Cambouya paid the $27,000. In addition to the purchase of the farm, cattle and some additional plant and equipment were purchased at a cost of $116,528.40. The balance of the funds were provided by an advance from American Pacific Tours Pty Ltd to Cambouya of $800,000 and an advance of $28,000 by Flightwest. The purchase of Goroka and the farm operations on Goroka were accounted for by Cambouya as trustee of the Buchanan trust. In the Trust's financial statements for the year ended 30 June 1992, Mr John Buchanan is shown as a creditor in the sum of $59,212, which sum included a "cash advance" of $10,658. If Mr Buchanan did contribute any money towards the purchase of Goroka, it was accounted for as a loan by him to Cambouya as trustee of the Buchanan trust.
12 Mr Buchanan deposed that after Goroka was advertised for sale he and Sir Dennis inspected it and Sir Dennis told him, "I will buy it for you. As it's going to be yours you will have to put some money in. How much have you got?" Mr Buchanan said "$27,000". Sir Dennis said "You will have to put all your money in". Mr Buchanan said, "I will". I am sure there is a large element of reconstruction about this evidence which was given more than thirteen years after the conversation was said to have occurred. There was no corroboration of the assertion that Mr Buchanan had $27,000 to put in, or that he did so, except Sir Dennis's note which is contrary to the other contemporaneous records. Sir Dennis may well have said to Mr Buchanan that Goroka "would be yours", or that he would buy it for Mr Buchanan. But I would not conclude from such language that Sir Dennis intended, or that Mr Buchanan understood him to intend that Mr Buchanan would own Goroka. As in the case of the purchase of Baxters, there is no reason for the farm not to have been purchased in Mr Buchanan's name if that was what was intended. The farming operation conducted on Goroka was conducted by Cambouya which derived the income from and met the expenses of the farm, without any suggestion from Mr Buchanan that the position should be otherwise.
13 If Sir Dennis used the words to which Mr Buchanan deposed, I think he meant and would reasonably have been taken to have meant that he, or an entity he controlled, would buy the farm and Mr Buchanan could live on the farm rent-free and work it without interference.
14 From the time Goroka was purchased, Mr Buchanan carried out extensive repairs, maintenance and improvements to the property. He sowed lucerne and grass, installed troughs and watering systems, arranged for the erection of a large dam, timber cattle yards and an irrigation system, dismantled and erected fencing, and maintained the herd of cattle. All of the expenses associated with these activities were paid for by Cambouya. Farm labourers were employed on the farm. Their wages were paid by Flightwest. Mr Buchanan was also paid wages through Flightwest for work which he did on the farms.
15 In 1994, the farm adjacent to Goroka became available for purchase. It is the property now known as Asaro Lodge. Mr Buchanan discussed its purchase with Sir Dennis. Mr Buchanan deposed to the following conversation:
" Dad said 'the place … is up for sale. We should buy it.' I said 'It's run down. It would be too much work for me to clean up'. Dad said 'I think you should get it. I'll pay for it if you do the work to clear it up.' I said 'If it's going to be mine, I will clear it up'. Dad said 'OK'.
16 Mr Buchanan did not say that these were the precise words which were used. No contemporaneous record was prepared which suggests that Mr Buchanan was to have any proprietary interest in the property. Asaro Lodge was purchased in June 1994 by Cambouya for $550,000. I am not satisfied that Sir Dennis told Mr Buchanan that Mr Buchanan would own Asaro Lodge. I think it likely that he told Mr Buchanan that he could farm Asaro Lodge. I am not satisfied that Mr Buchanan said to Sir Dennis "if it's going to be mine I will clear it up" and that Sir Dennis said "OK". It was apparent from the way Mr Buchanan gave evidence that he did not have a precise recollection of events. I do not accept that he had a precise recollection of those words being used. If Sir Dennis had intended the farm to be owned by Mr John Buchanan, there would have been no point to its being purchased by Cambouya. The objective evidence in relation to the raising of finance for the property, the acquisition of the property in the name of Cambouya, the funding of the farm operations, and the accounting for those operations, indicates that all parties understood that the property was to be owned by Cambouya.
17 The property had been used as a horse stud and was infested with weeds. There were no watering facilities, and the fences were unsuitable for horses. Farm labourers were employed to assist with the work on Asaro Lodge. Mr Buchanan also did substantial work on the property, including fencing, dismantling sections of yards and replacing them with steel panels, rebuilding stallion yards with the assistance of a contractor, rebuilding stables, installing irrigation systems, extending the area under irrigation, and lining a forty foot deep irrigation well with concrete. The expenses for this work were paid by Cambouya.
18 From about 1998, Mr Buchanan started breeding racehorses on Asaro Lodge. The proceeds of the sale of those horses were paid to Cambouya's bank account. Between 1994 and 1998 Mr John Buchanan continued to be paid wages by Flightwest for the work done on the farming properties. In the year ended 30 June 1995, he was paid wages of $28,395. In the following financial year he was paid $39,769, and in the year after that, his wages were $43,000. In addition to the wages he was paid, all of Mr Buchanan's expenses were paid out of the Cambouya bank account.
19 Mr Buchanan gave evidence that at about the time he moved onto the Baxters property, Sir Dennis told Mr Buchanan that he would start a bank account for him for the farm. Sir Dennis said that he would put some money into the account to start Mr Buchanan off, that it would be in Cambouya's name, but it would be his account. He could be the sole signatory. I generally accept this evidence, but do not accept that I should draw inferences as to the beneficial ownership of the moneys in the account by construing the words that Mr Buchanan endeavoured to recollect years after the conversations occurred. I do not accept that Sir Dennis said that Mr Buchanan would own the funds in the Cambouya account, as distinct from being able to access them as he wished. Mr Buchanan used the account by depositing money into it and drawing cheques from it as if it were his own. He did this without reference to any director of Cambouya. At the end of each financial year he collated all the invoices, statements, bank statements, cheques and cheque butts and forwarded these to the accountants. He deposed that his father signed Cambouya's financial statements and tax returns prepared by the accountants from the information and documents which he provided to them.
20 Mr Buchanan must have realised that Cambouya owned the farms, that it paid the expenses of the farms, and that it derived income from the farms. Unless the farm businesses were businesses of Cambouya, there would be no purpose in his sending the financial records to the company's accountants for them to prepare financial statements for Sir Dennis's signature. Mr Buchanan gave oral evidence that he thought that Cambouya owned Baxters, Goroka and Asaro Lodge. Cambouya kept a loan account with Mr Buchanan. To the extent that the moneys he drew from its bank account were referable to the farming operations, the drawings were debited as expenses of Cambouya. To the extent the drawings could not be accounted for in this way, they were debited to Mr Buchanan's loan account with Cambouya.
21 Shortly after he was appointed a director of Cambouya, Mr Buchanan signed the financial statements for the Buchanan trust for the financial year ended 30 June 1998. It showed an operating loss for that financial year of $116,464. It showed Mr Buchanan as a creditor of the trust in the sum of $53,426.90. This took account of private expenses paid on his behalf in that financial year. Mr John Buchanan said that he probably did not understand that he was signing a set of accounts. However, I cannot accept that evidence. The financial statements which he signed plainly showed that the Buchanan trust, of which Cambouya was the trustee, was carrying on the farming business. By 30 June 1998, it had incurred accumulated losses of $484,256.
22 Mr Buchanan did not know what the farms were costing to run. He said that he just put money into the Cambouya bank account and lived off the bank account.
23 Sir Dennis Buchanan was concerned about the profitability of the farms. He had suffered financial reverses. Flightwest was in financial difficulties. Sir Dennis and his wife were separated and were later divorced. He had to make a financial settlement for her.
24 On 20 May 1998, Sir Dennis wrote to Mrs Della Buchanan in relation to her intention to separate from him. In relation to a financial settlement, Sir Dennis wrote:
" I have been preparing for us both to have a secure income for the rest of our lives. I do not want to adversely affect Flightwest or our farm investments. Both John and Guy are responsible for these two organisations. I want to retire from active participations (sic) in Flightwest so I can live on the farm. "
25 It is clear that Sir Dennis did not consider that the farms were beneficially owned by Mr John Buchanan. Rather, Mr Buchanan was "responsible" for the farms.
26 On 11 November 1998, Sir Dennis again wrote to Mrs Della Buchanan. He discussed his and his wife's financial affairs. His letter included the following statements:
" I had the farms at Baerami for us to retire on but it appears that John considers these farms as his!
…
… Both the trust and Flightwest needs funds. It cost me $150,000 p.a. to keep John on the farms. "
27 Sir Dennis did not acquiesce in Mr Buchanan's apparent assertion or assumption that the farms were his. However, it does appear that by November 1998, Sir Dennis was aware that Mr Buchanan asserted that the farms belonged to him. That was a matter of surprise to Sir Dennis. There were no objective circumstances which would have warranted Mr Buchanan believing that the farms were his, except for the fact that he had lived on and worked on the farms for ten years and brought up his family on the farms. However, the farms were not registered in his name. The income from the farming operations were not derived by him. He did not pay the expenses of the farms. He was paid a wage by Flightwest of, at that time, $40,000 per annum and met all his other expenses from Cambouya's bank account.
28 On 29 March 1999, Sir Dennis wrote to Mr Buchanan. Amongst other things he wrote:
" The main thing is for you to be viable down on the farms. You have to produce cash flow that will pay all the wages and operating costs plus some profit. I won't be here forever to help you with the costs of running the farms. Flightwest is not in the financial position to subsidise the farms as it is seriously short of capital. ….
I am aware that you could sell Baxters farm but I look on Baxters as being my place when I retire. I have no money of my own so we'll need a house. It will be far enough away from you and your family!
…
I know you intend to spend money on the farms but I warn you that both Flightwest or I have any surplus money. (sic)
There may have to be the sale of some assets. I don't have any personally. There is …. and there are your farms. … I don't want to sell the farms as you know but it will give you something to think about. "
29 On balance, this letter suggests that Sir Dennis did not believe that the farms belonged to Mr Buchanan. It rather shows that Sir Dennis was of the view that if he wished to insist on it, he could occupy Baxters and, if he wished, he could insist on the farms being sold. Although he described the farms to Mr Buchanan as "your farms" and said that Mr Buchanan could sell Baxters farm, the rest of the letter indicates that Sir Dennis thought that he could control what happened to the farms. That is consistent with his appreciating that the farms were an asset of the Buchanan trust and that he could control the trust.
30 This letter put Mr Buchanan on notice, if notice were needed, that Sir Dennis did not consider the farms to belong to Mr Buchanan. His subsequent conduct also should have confirmed to Mr Buchanan that Sir Dennis did not regard the farms as belonging to Mr Buchanan. According to Mr Buchanan, he had a telephone conversation with his father in October 1999 in which he told Sir Dennis that he was going to sell Baxters as it was not viable and it was not worth travelling backwards and forwards to the other farms. According to Mr Buchanan, Sir Dennis said "you can sell Baxters". They agreed that the proceeds of sale would be halved. Sir Dennis said that the old school house in Baerami was for sale and that he would buy it and retire there. In December 1999 and early 2000 Baxters was sold in two parcels for a total price of $400,000. Half of the proceeds of sale of one of the blocks at Baxters was used to purchase the old school house. It was purchased in the name of Guy and Youlanda Buchanan. Mr Guy Buchanan is Mr Buchanan's brother. When Baxters was sold, Mr John Buchanan did not receive any of the proceeds of sale. He did not make any complaint about not receiving the proceeds of sale. Sir Dennis's conduct was inconsistent with his recognising that Mr Buchanan owned Baxters. Mr Buchanan's conduct was inconsistent with his believing that he owned Baxters.
31 At about the time of the sale of Baxters, Mrs Margot Buchanan asked Sir Dennis why he did not transfer the farms to John. Sir Dennis said to her "because of stamp duty and tax reasons. You don't need to worry. They are your farms". Mr Buchanan said that he had the same conversation with his father in early 2000. Again, this is inconsistent with the parties then being of the view that Mr Buchanan was the beneficial owner of the farms. It is consistent with Sir Dennis having the intention at some time in the future to transfer the farms to Mr Buchanan if financial circumstances were right to do so, but recognising that there would be stamp duty and tax consequences if the forms were transferred to Mr Buchanan. Sir Dennis had told Mr Dean, the general manager of Flightwest Airlines, some time between 1996 and 2001, that John Buchanan had done a good job on the farms and that "John will get the farms". He told Mr Dean that Cambouya "just runs John's farm". However, I do not consider that Sir Dennis ever regarded Mr Buchanan as being the owner of the farms.
32 Mr Buchanan deposed that in 2001 he told his father that he was thinking of selling Asaro Lodge to buy a farm further west. According to Mr Buchanan, his father told him "they are your farms, you can do what you like with them". He says that shortly before his father's death he asked his father "will you sign the farms over to me?" and was told "everyone knows they are your farms".
33 Mr Buchanan was not cross-examined on this evidence. However, it is uncorroborated and I do not consider that Mr Buchanan was a reliable witness on matters of detail, particularly where legal relations might depend on the detail of the words used. I do not accept that Sir Dennis made any unequivocal statement to him in which Sir Dennis recognised that Mr Buchanan was the owner of the farms. From time to time he referred to the farms as "John's farms" or, when speaking to Mr Buchanan, as "your farms". It does not follow from the use of those expressions that Sir Dennis regarded the farms as belonging to Mr Buchanan, as distinct from being farms occupied and run by Mr Buchanan. He may well have intended that Mr Buchanan would receive the farms in the future. However, I do not find that he said anything that could reasonably have induced Mr Buchanan to assume that he was the owner of the farms.
34 Mr Buchanan's claim to beneficial ownership of the properties was put on the basis that Sir Dennis had expressly encouraged in him the expectation and assumption that the farms were his sole property. Mr Buchanan did not plead or propound a case that his father had promised that the farms would be transferred to him in the future and that he acted to his detriment on the assumption that the farms would be his.
35 It was submitted for Mr Buchanan that Sir Dennis and Mr Buchanan had agreed, and it was their common intention, that Mr Buchanan was the beneficial owner of the properties. It was submitted that that was a sufficient basis for holding that Cambouya held the properties on constructive trust for Mr Buchanan. It was also submitted that Mr Buchanan acted to his detriment upon the assumption that the properties were his, which assumption had been engendered by the conduct of Sir Dennis Buchanan, such that it was unconscionable for Cambouya to deny his beneficial ownership. The detrimental reliance was the work done by Mr Buchanan on the properties from the time Baxters was purchased, a corollary of which was that Mr Buchanan did not take up other careers that might have been open to him. It was initially submitted, on the basis of the evidence given by Mr Buchanan, that he received no, or only nominal, payments from his father or any entity which his father controlled. However, that contention was disproved by the evidence of the wages paid to Mr Buchanan.
36 It was implicit in these submissions that Sir Dennis' conduct bound Cambouya, and that the claim would not be defeated by the fact that Cambouya held the properties on the trusts of the Buchanan trust.
37 Cambouya disputed the evidence of Mr and Mrs Buchanan as to what they were told by Sir Dennis, and what Mr Buchanan assumed as to his ownership of the properties. It also denied that even if the Buchanans' evidence were accepted it was bound by Sir Dennis's conduct. Sir Dennis was but one director of Cambouya and Cambouya owed duties to all of the beneficiaries of the Buchanan trust. Baxters, Goroka and Asaro Lodge were not Sir Dennis's properties to give away.
38 For the reasons I have given while summarising the evidence, I do not consider that Sir Dennis and Mr John Buchanan agreed, or that it was the intention of either of them, that Mr Buchanan was to own the properties and farming business beneficially notwithstanding that they were registered in the name of Cambouya. Cambouya's only business was as trustee of the Buchanan trust. No purpose would have been served in putting the properties in Cambouya's name if it were to hold the properties on trust for Mr Buchanan, rather than on the trusts of the Buchanan trust. The business which was carried on on the farm was carried on by Cambouya as trustee of the Buchanan trust, and not as trustee for Mr Buchanan, as shown in the financial statements of Cambouya and Mr Buchanan's tax returns. I therefore do not accept the first premise of the plaintiff's submission.
39 Nor do I accept the plaintiff's submission that if Mr John Buchanan and Sir Dennis had an actual common intention that the beneficial interest in the properties would be held by Mr Buchanan, that in itself would be sufficient to establish the existence of a trust, irrespective of whether Mr Buchanan had acted to his detriment on the faith of that intention. In support of that submission, counsel for the plaintiff relied on the judgment of Glass JA in Allen v Snyder [1977] 2 NSWLR 685 at 693. His Honour was there concerned to demonstrate that for a trust to arise on the basis of the common intention of the parties, and as explained in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886, the parties must have had an actual intention that the beneficiary have a beneficial interest in the property, rather than the court imputing such an intention to the parties on the basis of what it considered to be fair or just. His Honour considered that where a trust arises on the basis of the parties' actual common intention, it is properly categorised as an express trust which may be enforceable notwithstanding the want of writing, rather than a constructive trust. It is unnecessary to enter that debate. Later cases have accepted that one circumstance in which a constructive trust may arise is where the parties have an actual intention that one of them should have a beneficial interest in property whose legal title is held by the other and where the former party has acted to his or her detriment in a way referable to the parties' agreement or intention that he or she have an interest in the property. (Green v Green (1989) 17 NSWLR 343; Brandling v Weir [2003] NSWSC 723; Carruthers v Manning [2001] NSWSC 1130 at [124]; Parianos v Melluish (2003) 30 Fam LR 524; Grant v Edwards [1986] Ch 638).
40 As the Privy Council said in Austin v Keele (1987) 10 NSWLR 283 at 291 when talking of trusts arising from the parties' common intention rather than express declarations of trust:
" A trust does not come into being merely from a gratuitous intention
to transfer or create a beneficial interest. There has first of all to be the
additional ingredient of an intention or at least an expectation that the cestui que trust will act in a particular way, normally, though not necessarily exclusively, by making some contribution towards the cost of acquisition of the property in which the interest is intended to subsist. Moreover, Lord Diplock's formulation of the principle in Gissing v Gissing involves the further essential element that the trustee has so conducted himself that it will be inequitable to allow him to deny to the cestui que trust the beneficial interest which it is proved that he was intended to have. There has to be some conduct detrimental to the cestui que trust, even if only in the sense of an irrevocable change of legal position, which is referable to the common intention proved and undertaken on the footing of the grant of the beneficial interest claimed."
41 Thus Mr Buchanan would have to show that he acted to his detriment in a way referable to the agreement or intention that he have an interest in the property, in this case beneficial ownership. (Carruthers v Manning [2001] NSWSC 1130 at [124].) To qualify, the conduct in question must be such that Mr Buchanan could not reasonably have been expected to embark upon it unless he were to have an interest in the property. (Grant v Edwards per Nourse LJ at 648).
42 Cambouya contended that even if the other elements for the existence of a trust were established, Mr Buchanan had not acted to his detriment. It submitted that he provided no moneys towards the acquisition of either Asaro Lodge or Goroka. I accept that no such direct contribution has been proved. It submitted that although Mr Buchanan worked on the farms, he was amply rewarded for the work which he did. Not only was he paid a substantial salary by Flightwest, but he was provided with accommodation for himself and his family and all his expenses were met by Cambouya.
43 Mr Buchanan gave evidence that he always used the Cambouya bank account to pay expenses. He said he used it to pay for holidays or if he wanted to buy a piece of furniture. The cars which he drove were owned by Cambouya. The electricity on the farms and the rates were paid by Cambouya.
44 In his affidavit, Mr Buchanan deposed that he and his wife did not earn an income from the farms, but he stayed working on the farms despite hard work and long hours in the first four to five years because he assumed the farms belonged to him. He deposed that he believed he was investing time and labour to ensure that the farms would become viable and so secure a future for himself and his family. In fact, Mr Buchanan did earn an income from the farms from the wages which were paid to him by Flightwest. So far as records are available it appears that the loan account between Flightwest and Cambouya was adjusted to reflect the payment of wages by Flightwest to Mr Buchanan. The income paid to him increased from about $18,000 in 1989 to 1990, to $55,000 in 1999 and $53,446 in 2000. In 2001, $43,174 was paid, divided equally between Mr and Mrs Buchanan. Regrettably, Mr Buchanan's affidavit did not convey a clear picture of the benefits which he derived from working on the farms.
45 If Mr Buchanan had established that there was a common intention or an agreement between Cambouya and him at the time Baxters was acquired, that it would be beneficially owned by him, his working on Baxters, even for wages, may have been a sufficient act of detrimental reliance to form the basis of a constructive trust in relation to that property. At that time, Mr Buchanan committed himself to working as a farmer rather than pursuing other careers which were open to him and which he was actively considering. However, there was no such common intention or agreement and his claim is not in relation to Baxters.
46 Insofar as Mr Buchanan relies upon later representations or conduct by Sir Dennis which led him to believe that Baxters, Goroka or Asaro Lodge was his, I do not consider that he has demonstrated any relevant detriment. He was adequately remunerated for the work which he did. He had by then already embarked on a career in farming. By 1991 he was not contemplating alternative careers. I accept that he ceased doing so in the expectation that he would be able to continue to work the farms indefinitely. But his continuing to work was not conduct on which he could not reasonably have been expected to embark unless he were to have a beneficial interest in the property. He has thus not shown any relevant detriment in continuing to work on the farms for wages, accommodation and expenses.
47 I have accepted in these reasons that the intentions and conduct of Sir Dennis should be attributed to Cambouya. It is true that he was only one of the directors of Cambouya, but I infer that he was the controlling mind of the company. That inference is not only based on what Sir Dennis himself did, but also on what the other directors allowed him to do. I infer he made the decisions on the purchase of the farms, on the application of the proceeds of sale of Baxters, and in allowing Mr Buchanan to manage the farms, without reference to the other directors. Cambouya did not lead evidence to rebut that inference. He was in a position to control the company by his beneficial ownership of the shares, and could in any event remove it as the trustee of the trust. Mr Lowe, from Pricewaterhouse Coopers, Cambouya's accountants, accepted that Sir Dennis controlled the companies and trusts in the Buchanan group. I agree.
48 However, it does not follow that the case should be approached on the basis that Cambouya should be equated with Sir Dennis, and the Buchanan trust ignored. If Cambouya held the properties on the trusts of the Buchanan trust, before a constructive trust arose in favour of Mr John Buchanan, the interests of the beneficiaries of the Buchanan trust would prevail over Mr Buchanan's interest as they would be first in time. However, it is unnecessary to consider any issues of priorities having regard to my findings.
49 Mr Buchanan's alternative claim for a charge over the property to secure payment of an amount representing the extent to which the value of the properties had increased owing to his work on the properties was added as a late amendment. The claim was put forward as an alternative claim in case it was held that to impose a constructive trust would go further than was necessary to ensure conscientious conduct on the part of Cambouya. (See generally Giumelli v Giumelli (1999) 196 CLR 101). Having regard to the way the case was pleaded and conducted, in order to impose a charge to secure an increase in value of the properties attributable to Mr Buchanan's efforts, it would still be necessary for him to show that there was an agreement or common intention that he should own the properties and that he acted to his detriment in carrying out the work on the faith of that agreement or intention.
50 For the reasons previously given, I do not consider that those elements are met. In any event, I do not consider that principles of justice or equity require the imposition of such a charge. In this case, Mr Buchanan was paid for his work as well as having the benefit of accommodation and payment of his living expenses. Moreover, although his efforts have prima facie increased the capital values of the properties, the farms have been run at a substantial loss which Cambouya has funded.
51 Accordingly, Mr Buchanan's claim fails. The only defence to Cambouya's claim for possession of the property is that Mr Buchanan is the beneficial owner of it. As that claim has failed, Cambouya is entitled to an order for possession of Asaro Lodge and Goroka. It is also entitled to the declarations which it seeks that the defendants have no legal or equitable interest in the livestock, plant and equipment, crops, and fuel on the properties, or in the funds in Cambouya's cheque and farm accounts.
52 Mr and Mrs Buchanan will be entitled to a reasonable period in which to vacate the properties.
53 In proceeding number 3977/04 I order that there be judgment for the defendant and that the plaintiff pay the defendant's costs. In proceeding number 3892/04, I direct the plaintiff to bring in short minutes of order in accordance with these reasons. If necessary, I will hear argument as to the period for which a stay should be granted on the issue of a writ of possession. If consequential orders are sought, I will hear further argument on them.