CLIFTON -v- CHINNERY [2011] WASC 294 (26 October 2011)

4 Adaria signed an offer and acceptance to purchase Lot 387 at a price of $120,000 in February 1993. She settled on her acquisition on 14 April that year. During the trial I was told from the bar table by counsel for Dan and Dana that Lot 387 had appreciated significantly in value since 1993. However, no evidence about the present value of Lot 387 was led at the trial.

5 The nature of the interest in Lot 387 asserted by Dan and Dana has always been rather opaque. Even after a five day trial in the Supreme Court, the character of the equitable interest sought to be established in Lot 387 by Dan and Dana against Adaria is not clear.

6 There was a serious argument between Dan and his mother around October 2006. That appears to be a point at which a previously cordial family relationship began to turn sour.

7 It also marked the time at which Adaria articulated her request for regular rental payments by Dan and Dana as a basis for her allowing the family's continued occupancy of Lot 387.

8 Dana, acting on her and Dan's behalf, lodged Caveat K264237 against Lot 387 in July 2007. That caveat was supported by Dana's statutory declaration of 9 July 2007. The statutory declaration is a significant document in the proceedings.

9 In the face of steps taken by Adaria to have the caveat removed, these proceedings were commenced by Dan and Dana's originating summons on 25 October 2007.

Dan and Dana's cause of action concerning their claimed interest in Lot 387

10 Dan and Dana's originating summons was amended under orders of Newnes J of 10 August 2008. The amendment added a paragraph 4 pursuant to which Dan and Dana claim 'an interest in the land contained in Certificate of Title Volume 1936 Folio 92, known as 151 Stagbouer Trail, Marradong (the Boddington property) as set out in the statement of claim annexed hereto'.

11 There have been several statements of claim filed by Dan and Dana between 2007 and 2009. The current iteration of Dan and Dana's statement of claim is a substituted pleading filed in September 2009. It contains averments comprising 74 paragraphs, culminating in prayers for relief seeking:

An equitable interest or beneficial interest in the Boddington Property in the following ways:

(1) A declaration that the Plaintiffs have an interest in the Boddington Property;

(a) arising from sufficient acts of part performance pursuant to the Agreement; alternatively

(b) an assumption as to the future ownership of the Boddington Property that had been induced by the representations made by the First Defendant detrimentally relied upon by the Plaintiff.

(2) A declaration of the extent of the Plaintiffs interest in the Boddington Property.

A monetary sum representing the present value of the Plaintiffs interest in the Boddington Property or such lesser sum as the Court deems fit.

(3) By the pooling of resources of the Plaintiffs and the First Defendant in a joint endeavour that included the purchase, running and repayment of the costs of the Boddington Property and in the circumstances the Plaintiffs are entitled to an interest in the Boddington Property in such proportions as the Court deems fit.

(a) A monetary sum representing the present value of the Plaintiffs interest in the Boddington Property or such lesser sum as the Court deems fit.

12 This prayer seeks to ground Dan and Dana's 'interest' in Lot 387 essentially on a threefold basis, by reference to causes of action pursued in the alternative.

13 The first cause of action raised is contractual, by reference to what is referred to as 'the Agreement', coupled to asserted acts of 'part performance' pursuant to that Agreement.

14 The Agreement contended for by the pleading is defined at par 7 of the substituted statement of claim as an oral agreement between Dan, Dana and Adaria. Paragraph 7 of the substituted statement of claim reads:

The agreement to buy land ('the Agreement') was an oral agreement made in the year 1992 over a period of time and in various conversations between the plaintiffs and the first defendant held at the Ledge Point property and in Perth.

15 More aspects of this oral agreement emerge under pars 6 and 8 of the substituted statement of claim. Importantly, par 6 refers to Adaria being repaid her purchase price for Lot 387 by Dan and Dana. Paragraph 6 reads:

The plaintiffs would live on and work the land and repay the first defendant the purchase price with the property becoming by sufficient acts of part performance on the part of the plaintiffs an early inheritance for the plaintiffs and their children.

(my emphasis in bold)

16 Many ensuing paragraphs in the substituted statement of claim look to have been crafted by references to the Agreement (meaning the oral agreement, as is identified under par 7). However, when the trial commenced, counsel for Dan and Dana informed the court that a cause of action in contract was no longer advanced. Not only that, but the pleaded notion that Dan and Dana would repay the purchase price for Lot 387 to Adaria was acknowledged to be wrong.

17 On the subject of pleadings and the Agreement, I mention that there is a second oral agreement contended for within the current iteration of the statement of claim that is alleged to have been reached between Dan, Dana and Adaria in the year 2000. This second oral agreement is said to relate to the purchase in 2000 of a 'kit home' by Adaria, then assembled by Dan sporadically upon Lot 387 between 2000 and 2006 (see pars 44 and 46). It is important not to confuse these distinct oral agreements. The first is asserted to have been made in 1992, and the second in the year 2000.

18 Paragraphs 44 through 52 of the most recent iteration of the statement of claim read to me as referring to the second oral agreement said to have been perfected regarding the kit home in the year 2000.

19 The second of the three alternatively pleaded causes of action raised under the substituted statement of claim seeks to establish a proprietary interest constructive trust in favour of Dan and Dana grounded upon a mutual pooling of assets and resources with Adaria in pursuit of what ultimately has turned out to be a failed joint endeavour as regards Lot 387. For the formation of a constructive trust arising out of a joint venture, see generally Muschnski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (Deane J), Baumgartner v Baumgartner (1987) 164 CLR 134 (Toohey J), Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360, Trustees of the Property of Cummins (A Bankrupt) v Cummins [2006] HCA 6; (2006) 227 CLR 278, Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; (2006) 156 FLR 53 and Sui Mei Huen v Official Receiver for Official Trustee in Bankruptcy [2008] FCAFC 117; (2008) 248 ALR 1. This constructive trust cause of action grounded upon an alleged pooling of resources was also abandoned by counsel for Dan and Dana on day one of the trial. Accordingly, it is not necessary to canvass its implications further in these reasons.

20 The last of the three alternative causes of action raised by Dan and Dana under their substituted statement of claim of September 2009 invokes proprietary estoppel. At first blush, a reading of par 4(a) of the prayer for relief could indicate that all that was being sought was a monetary sum 'representing the present value' of the plaintiffs' 'interest in Lot 387 or a lesser sum'. However, pars 1(b) and 2 of the prayer take the proprietary estoppel claim, at least in concept, beyond what might otherwise present as merely a claim to money as 'equitable compensation'.

21 The nature of Dan and Dana's claim either for an equitable interest or beneficial interest in the Boddington property was unclear from the pleadings. What became clear on day one of the trial was that the claim of Dan and Dana to an interest in Lot 387 was an equitable claim that was advanced exclusively by reference to principles of proprietary estoppel. This is confirmed in the written closing submissions of the plaintiffs of August 2011, the first paragraph of which reads 'The only claim the plaintiffs make in this case is one for proprietary estoppel'.

22 Notwithstanding the abandonment of two of the plaintiffs' three pleaded causes of action in opening, there has been no application on behalf of Dan and Dana to amend the substituted statement of claim. In some cases that may not present as a difficulty, especially if the residual cause of action is coherently formulated and can be read to stand apart from any pleaded causes of action no longer relied upon. However, the difficulty in the present case is that the substituted statement of claim has been founded heavily in concept upon the Agreement, as defined and there is no longer any contract claim pursued. Yet multiple references in the statement of claim to the Agreement between Dan, Dana and Adaria sit undisturbed in the pleading. Perhaps the unspoken assumption on behalf of the plaintiffs from day one of the trial was that, from that point, any references in the substituted statement of claim to the Agreement were to be read as constituting promissory representations or assurances which, although not rising to the level of enforceable contractual promises supported by consideration, were nonetheless sufficient to ground a proprietary estoppel against Adaria and establish an 'interest in Lot 387' for Dan and Dana.

23 In an ordinary case, with a view to limiting waste, expense and undue technicality in pleading, I would be amenable to proceeding on the basis that the statement of claim be read and interpreted in that revisionary way. The difficulty, however, is that the promissory representations, assurances or statements that are sought to be established by Dan and Dana against Adaria in order to make good their equitable estoppel case have been framed upon a factual premise of the Agreement to repay the purchase price of Lot 387. But that factual premise is no longer contended to be correct.

24 Many paragraphs in the substituted statement of claim are constructed around the Agreement (see pars 9, 12, 14, 20, 22, 24, 27, 28, 30, 36, 44, 66(a) and 67).

25 During counsel for the plaintiffs' opening I sought to raise the issue of Dan and Dana's obligation to repay the purchase price of Lot 387 under the Agreement (ts 19):

HOCKLEY, DR: The arrangement was that they would repay these various loans on the property and they borrowed some money later on for a kit home and they paid that off. Also, my understanding was that they were going to pay the funds used to develop the property back to Mrs Chinnery.

KENNETH MARTIN J: Let's just be quite clear about that though. The $120,000 purchase price to acquire the Boddington property in 1993 - are the plaintiffs - did they say that it was part of the deal, in adverted commas, that they would make repayments to Mr Clifton's mother to pay off the capital acquisition price or not?

HOCKLEY, DR: I had better get some instructions just to clarify that.

KENNETH MARTIN J: By all means.

HOCKLEY, DR: As I thought, your Honour. As I had set out, there was no agreement to repay the 120,000 money. The agreement was that if they lived and worked on the property that the property would become theirs like an early inheritance and that is what we have always

KENNETH MARTIN J: Inheritance signifies gift.

HOCKLEY, DR: Yes, that if they lived and worked there

KENNETH MARTIN J: Lived and worked, what, forever?

HOCKLEY, DR: For sufficient time - that they weren't going to pay back the 120,000, the amount, but they did borrow money - with the bus run money was borrowed and that was used - they repaid off the cost of the vehicle.

KENNETH MARTIN J: Yes. This all started with debt, Dr Hockley, in paragraph 25, the sentence, 'Would be paid to Mrs Chinnery to reduce the debt on the Boddington property.' I just want to know what that debt is; that's all. If it is for the kit home or the moneys used to buy a bus to run the school bus run, I understand that, but that wouldn't be a debt on the Boddington property, prima facie anyway unless that's explained

HOCKLEY, DR: Yes, yes, I quite agree with your Honour. I think I would have to omit the words from after 'Mrs Chinnery,' put a full stop there and omit 'reduce the debt on the Boddington property.' I think I have to take that out.

26 The lastmentioned reference by counsel for the plaintiffs to omitting words 'after "Mrs Chinnery"' is a reference to counsel's written opening address of 3 June 2011, par 25 of which reads:

In 1995 Dana, when taking her children to school found that there was an opportunity to take over the Mort Road school bus run as a profit making venture. The bus run venture was discussed with Mrs Chinnery and it was agreed that Dana would be the driver with the plaintiffs paying for the running costs of the vehicle and the income received would be paid to Mrs Chinnery to reduce the debt on the Boddington property. A tender for the bus run was successful and from July 1995 to October 2006 the income from the bus run was paid by the Department of Transport directly to Mrs Chinnery. A Mitsubishi Starwagon was purchased as the 'school bus' for the sum of $17,000 and this vehicle ... was paid off partly through the proceeds of the school bus run and by other repayments made by Dan and Dana to Mrs Chinnery.

(my emphasis)

27 This exchange with counsel for the plaintiffs is of importance for a number of reasons. First, it can be seen that counsel's instructions concerning the repayment of purchase price were expressly clarified. Second, the ensuing clarification that there was no agreement to repay the $120,000 purchase price for Lot 387 was significantly at odds with the plaintiffs' substituted statement of claim of September 2009, insofar as large components of the pleading are constructed around the notion of the Agreement. It is one thing to move away from a contention about an enforceable common law agreement to instead rely upon an estoppel with promissory components. It is another thing entirely to recraft the factual promissory components raised against Adaria. This late change by Dan and Dana in what is contended to have been said must be borne in mind, particularly as it relates to disputed words said to have been uttered so long ago in a family conversation between mother and son.

28 It might have been expected that the factual components of the statement of claim resiled from would be corrected, or at least excised to clarify the factual averments actually relied upon in order to make good the residually pleaded contentions for proprietary estoppel. Alas, that was not to be.

29 The words contended to have been exchanged between Dan and Adaria also calls attention to another theme advanced on behalf of Dan and Dana which in many respects is as difficult to grasp as the unspecified 'interest' they seek to claim in Lot 387. This is the reference to Dan's 'early inheritance' from Adaria.

30 The notion of inheritance at first blush would tend to suggest a gift. However, the early inheritance was expressed as being tied to Dan and Dana living and working on Lot 387 for a 'sufficient time'. The duration of what would be a sufficient timeframe is something else that was never made clear at the trial.

31 Furthermore, the word 'early' qualifying the noun 'inheritance' needs to be grappled with. The phrase 'early inheritance' seems to carry connotations of something which Dan would receive at a time earlier than a testamentary gift under Adaria's will upon her death. How much earlier, however, was never clear.

32 From day one of the trial, Dan and Dana's case exclusively grounded upon proprietary estoppel was difficult to grasp. The pleaded case, allowing for the abandonment of two causes of action not pursued, seems to centre upon asserted oral promissory representations, assurances or statements alleged to have been made 19 years ago by Adaria to Dan regarding his 'early inheritance' that were then resiled from by Adaria in 2007.

33 The pleaded response by Adaria by her amended defence and counterclaim has always denied the 'Agreement' with Dan, or with Dan and Dana. Likewise, she has always refuted any alleged conduct on her part capable of giving rise to a constructive trust or a proprietary interest in Lot 387 for Dan and Dana grounded upon some genre of estoppel.

34 By par A1 of Adaria's defence, her asserted position is:

In 1993, by verbal arrangement between the first defendant and the plaintiffs (the Arrangement), the first defendant permitted the plaintiffs and their children to live at Lot 387 Ashcroft Road, now known as 151 Stagbouer Trail, Boddington (the Property) to alleviate financial hardship on the plaintiffs.

35 Adaria contends that in 1993 she permitted Dan, Dana and their children to reside upon Lot 387 under a mere occupancy arrangement to alleviate their 'financial hardship'.

36 Under par 2 of her defence, Adaria identifies six aspects of a 1993 verbal occupancy arrangement as:

(a) After the Property was purchased (Dan) asked if he and his family could live on the Property in the shed on that property;

(b) There was an existing shower/laundry in the shed;

(c) (Dan) stated words to the effect that if they were able to live on the Property he would do the work to petition the shed into two bedrooms and a kitchen/living area;

(d) (Adaria) stated that she would pay for the material needed for the fitout;

(e) (Dan and Dana) indicated that they could not pay rent and (Adaria) stated words to the effect that they should not to worry about rent and that they could look after the Property for her and do some work around the Property to help out instead of rent;

(f) Adaria agreed to let the plaintiffs and their family stay there until she retired and started growing proteas.

37 Adaria pleads that her act of allowing Dan and Dana to live on Lot 387 is an ongoing act of kindness, generosity and support on her part as a mother towards her son and his family over 13 years between 1993 and 2006, and nothing more.

38 By par 40 of her defence, Adaria says that in October 2006 she asked Dan and Dana to leave Lot 387. At that time she was doing work to upgrade and refurbish the shed situate on Lot 387 to ready it for letting out to a tenant. The shed had been occupied by Dan, Dana and their three children from about the end of 1993 until 2006, being the time when Dan, through his intermittent efforts, had finally managed to bring a kit home to a reasonable degree of completion. The family's move out of the shed to the kit home meant the shed was available to be let out, once it was cleared and refurbished. Adaria was working on the shed to that objective in the latter part of 2006. At that time she had a serious argument with Dan who spoke harsh and profane words to her. This incident significantly altered the family dynamics.

39 Adaria pleads that after she had asked Dan and Dana to leave Lot 387, Dana approached her and requested her to permit the family to remain at Lot 387. Adaria says that she agreed to Dana's request, but on a basis that Dan and Dana make payments of $300 per fortnight for rent, as well as another $300 per fortnight in repayment and reduction of a $20,000 loan which Adaria had advanced to Dan and Dana in March 2004 (see defence pars 34.1 and 34.2).

40 Adaria pleads that for seven months between October 2006 and April 2007, she received instalments payments from Dana of $600 per fortnight. But these payments ceased in April 2007. On that basis Adaria pleads that Dan and Dana are in breach of an express term of a (distinct) 'Agreement' that they would vacate Lot 387 at her request (see Adaria's counterclaim pars 47, 48 and 49).

41 Adaria also complains of the caveat, K264237, which Dan and Dana caused to be lodged against Lot 387 in July 2007. As relief by her counterclaim, Adaria seeks orders from this court requiring the removal of this caveat, as well as an injunction against Dan and Dana restraining them from lodging further caveats. Adaria also seeks an order granting her the vacant possession of Lot 387 where Dan and Dana continue to reside with their children in the kit home.

42 Adaria's counterclaim sought damages against Dan and Dana. However, in closing the case at the trial, counsel for Adaria clarified that Adaria sought vacant possession of Lot 387, but no money from Dan or Dana.

43 In summary then, the following key aspects in the case present:

(a) The only cause of action advanced by Dan and Dana in this litigation is an equitable cause of action founded upon proprietary estoppel.

(b) The nature of the claimed interest in Lot 387 by Dan and Dana is on the basis of noncontractual assurances, encouragements or representations concerning his future acquisition of an interest in Lot 387 as an 'early inheritance' said to have been made by Adaria to Dan in 1992.

(c) Adaria's position expressed under her defence and counterclaim is that she is fully at liberty to require Dan and his family to vacate Lot 387 and surrender up vacant possession. She has done so and insists upon the enforcement of that right from the court. She asserts that she is free to deal with Lot 387 as she sees fit, including to sell Lot 387 and to use the proceeds as she pleases.

44 Before turning to the evidence in the case, I will endeavour to summarise some principles underpinning the proprietary estoppel cause of action.

45 As the name suggests, proprietary estoppel is concerned with claims to an interest in land. A proprietary estoppel is an equitable estoppel. For an explanation as to the different genres of estoppel, see Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1 [3535] and following. In Bell [No 9] at [3543], Owen J, by reference to the following observations made in Silovi Pty Ltd v Barbero (1988) 13 NSWLR 466, 472 by Priestley JA:

[C]ases described historically as estoppel by encouragement and by acquiescence, proprietary estoppel and promissory estoppel are all species of equitable estoppel;

46 A proprietary estoppel claim is a scenario of an equitable cause of action being advanced in order to obtain relief. It is not a situation of equity being invoked as a defensive shield, rather than a sword: see the observations of Brennan J (as he then was) in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 428.

47 In broad summary, an equitable estoppel is established by a claimant party or parties satisfying three critical elements, namely representation, reliance and detriment. The elements intersect. The doctrine is grounded from a global perspective upon Equity's just response to what is assessed by a court as unconscientious conduct perpetrated by a defendant.

48 Recently in this court, Corboy J in Como v Helmers [2011] WASC 179 rendered helpful passing observations about the extent of potential relief by way of an equitable proprietary estoppel which I repeat. His Honour said [77] :

In cases of promissory and proprietary estoppel, the court is not limited to doing 'the minimum equity to do justice to the plaintiff': see Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101; Delaforce v Simpson-Cook and Donis v Donis [2007] VSCA 89; (2007) 19 VR 577. That is because generally the estopped party can only avoid the detriment that would occur by resiling from the assumption or expectation that they had engendered by making good that assumption or expectation. That is not to say that proportionality between the claimed interest or remedy and the prejudice or detriment is not a relevant consideration: see Delaforce v Simpson-Cook. The court will not grant relief that exceeds what could be justified by the requirements of conscientious conduct and which was unjust to the estopped party: see Giumelli [42], [43] and [44] and Delaforce v Simpson-Cook. That principle operates as a negative one: Delaforce v Simpson-Cook [77] (Handley JA).

49 The leading High Court authority regarding proprietary estoppel is Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101, an appeal from the Full Court of the Western Australian Supreme Court, in which the High Court observed upon the nature of a constructive trust that was proprietary in nature. At [5] and [6], the plurality (Gleeson CJ, McHugh, Gummow and Callinan JJ) observed:

1. Rather, the order made by the Full Court is akin to orders for conveyance made by Lord Westbury LC in Dillwyn v Llewelyn [(1862) [1862] EngR 908; 4 De GF & J 517 at 523 [45 ER 1285 at 1287]] and, more recently, by McPherson J in Riches v Hogben [[1985] 2 Qd R 292 at 302].
2. In these cases, the equity which founded the relief obtained was found in an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff. This is a well recognised variety of estoppel as understood in equity and may found relief which requires the taking of active steps by the defendant.

50 In Giumelli, the court was concerned with a challenge against the expansiveness of orders made against the appellant by the Full Court. It was contended that the orders went too far, as the relief granted exceeded the 'minimum equity' necessary to do justice on the particular facts of that case. Equitable relief is discretionary in nature and it responds to questions of substance, assessed in the particular context of each case. The High Court, referring to observations by Dawson J in The Commonwealth v Verwayen (1990) 170 CLR 394, 454 and approving observations by McPherson J in Riches v Hogben [1985] 2 Qd R 292, 300 301, said:

Dawson J referred to such authorities as the speech of Lord Kingsdown in Ramsden v Dyson [(1866) LR 1 HL 1 29 at 170] and the judgment of McPherson J in Riches v Hogben [at 302], as authority for the proposition that avoidance of the detriment involved may require that the party estopped make good the assumption, although his Honour noted that, depending upon the circumstances of the case, the relief required may be considerably less.

51 Appropriate relief, in order to avoid a detriment suffered, or likely to be suffered, by a plaintiff in a particular case may rise to a situation that requires a particular assumption reasonably relied upon by a plaintiff to be made good. That in turn may necessitate an order requiring a conveyance of an interest in land to the plaintiff, if that were to be assessed as the appropriate relief. But, individual circumstances uniquely assessed in each case will always, within the framework of the flexible character of equitable relief, dictate the ultimate measure of relief.

52 In Giumelli, the Full Court's orders were varied. A monetary award was substituted for the appellant's son, rather than the grant of an interest in property. Compensation orders were assessed as preferable to 'avoid relief which went beyond what was required for conscientious conduct (by the defendants)': Giumelli [50]. See also Kirby J in Giumelli [64].

53 In 2010 the New South Wales Court of Appeal delivered Delaforce v SimpsonCook [2010] NSWCA 84, a decision which both counsel for the plaintiffs and the defendant gave particular emphasis. As Corboy J observed in Como v Helmers, Delaforce is significant. It carries important observations concerning Giumelli.

54 Since they present as of importance to both sides' arguments, I will set out the observations of Allsop P at [3] and [5] in Delaforce:

[3] I agree in particular with Handley AJA that the reasons of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli appear to remove as a governing principle in the relief to be granted in equitable or proprietary estoppel cases the notion of enforcement or vindication only of the 'minimum equity' [referring to Giumelli at [40]-[48]]. That, of course, does not make irrelevant matters that can assuage the detriment brought about by the resiling from the representation or encouragement by the party concerned. It does mean, however, that relief in such cases is not to be measured by weighing detriment too minutely in order that it be converted into some equivalent of cash or kind, as if one were measuring the consideration for a commercial bargain. Equity will look at all the relevant circumstances that touch upon the conscionability (or not) of resiling from the encouragement or representation previously made, including the nature and character of the detriment, how it can be cured, its proportionality to the terms and character of the encouragement or representation and the conformity with good conscience of keeping a party to any relevant representation or promise made, even if not contractual in character. Equity has always had a place in keeping parties to representations or promises: [citation of authority omitted].

...

[5] The importance of keeping a party to a representation or encouragement previously made is all the stronger where, as here, the encouragement or representation has been relied upon by a party to abandon a course of conduct that could possibly have led to a different outcome. This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. Such expression of the matter is not different to how Dixon J put the matter in Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; 59 CLR 641 at 674675 ...

See also observations of Handley AJA at [56], as well as the analysis of Giumelli and Delaforce by Corboy J in Como v Helmers [77] to which I have referred.

55 By reference to those observations, I proceed on the basis that there is no necessary minimum equity principle constraining the scope of potentially appropriate relief in response to a detriment in the case of a claimed proprietary estoppel. I proceed on the basis that it is necessary to assess appropriate relief by reference to the particular circumstances of this case.

56 I need to briefly elaborate upon some further aspects of the fundamental elements of representation, reliance and detriment arising as necessary in order to show the proper foundation for proprietary estoppel.

57 In the first place, there appears to be a conceptual distinction between equitable estoppels founded upon positive acts of encouragement and cases of estoppel arising in situations where a party is sought to be estopped on the basis of more passive acts, or rather by 'standing by', not intervening in circumstances where the inactive party knows that the other is acting in error and taking steps to its detriment. The conceptual distinction is used by Justice Handley in his text Estoppel by Representation (2006).

58 However, it is clear in the present trial that the contended proprietary estoppel is framed upon affirmative acts of alleged conduct on the part of Adaria that are said to have engendered reliance by Dan and Dana upon the expectation of gaining an interest of some kind in Lot 387. By way of asserted detriment, Dan and Dana plead the value of improvements to Lot 387 and the loss of the opportunity to pay off a house of their own.

59 Essentially then, Dan and Dana advance their case for proprietary estoppel grounded upon alleged acts of encouragement in 1992 to Dan by Adaria.

60 In assessing the character of a sufficient promissory statement or representation, there presents as something of a tension between the need to prove a clear representation capable of being reasonably relied upon (as to which see Owen J in Bell [No 9] [3546] and [3473] [3476]) and the inherently flexible nature of the equitable doctrine to respond appropriately to scenarios of unconscientious conduct.

61 At [3474] Owen J, by reference to observations of Lord Hailsham in Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd [1972] AC 741, recognised that the standard of precision in a representation was not that of 'ineluctable precision'. Elaboration of Owen J's position can be found in his earlier decision of Witham v Witham [2000] WASC 236 [84]:

If the basis for an estoppel argument is a promise, it must be clear and unambiguous: Legione at 436-37. Indeed the word 'unequivocal' has been used: Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 60. This is because there must be an inference drawn that the statement was intended to affect the legal relations between the parties. It does not follow that the words must be such that they cannot possibly be open to constructions. But it is essential to show that the statements were of such a nature that they would have misled a reasonable person: Western Australian Insurance Co Ltd v Dayton [1924] HCA 58; (1924) 35 CLR 355 at 375. The onus lies on the person asserting the estoppel to establish these elements: China-Pacific SA v Food Corporation of India [1981] 1 QB 403 at 429.

62 Nevertheless, it is important to remember that the doctrine applied is one of equity and the situation is not one of contractual bargain. In Chapter 11 Handley, Estoppel by Conduct and Election (2006) [11037] it is observed:

The representation or promise need not be unambiguous and equity can fashion the appropriate relief.

63 The observation in the text is supported by Gillett v Holt [2000] EWCA Civ 66; [2000] 2 All ER 289, 302. There Robert Walker LJ approved observations from an earlier decision by Slade LJ in these terms:

At first sight, it may be surprising that a promise to confer an interest in property which is so equivocal ... that it would be incapable of giving rise to a binding contract may be capable of conferring on the promisee a right in equity to the transfer of the whole property ... The equivocal nature of the promises ... is clearly one relevant factor when considering whether it would be unconscionable to permit the administrators to rely on their strict legal titles.

64 However, that position is difficult to reconcile with the observations of Mason and Deane JJ in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 436, where their Honours said:

The requirement that a representation must be clear before it can found an estoppel is, in our view, applicable to any doctrine of promissory estoppel.

65 Similar views have been expressed by the New South Wales Court of Appeal in Sullivan v Sullivan [2006] NSWCA 312, in which Hodgson JA (with whom McColl JA agreed) stated:

Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the representee to interpret the representation or promise in a particular way.

66 On that basis there would appear to be some tolerance allowed in the realm of equitable estoppels notwithstanding what may present as the equivocal character of the promissory or representational conduct of a defendant relied upon to found relief. In the present case, a degree of tolerance is called for given the familial context in which the representation is alleged to have been made is not as calculated or precise as a commercial transaction between business persons. Having recognised that, the assurance, encouragement, promise or representation raised as the basis for relief needs to be assessed as sufficiently certain.

67 Observations in Sullivan as to a need for a promise or representation to be sufficiently certain dovetail with the second fundamental component of a proprietary estoppel, namely the aspect of some ensuing reliance upon what is said or done by the promisee or representee.

68 Reliance raises a question of fact to be assessed in each case. From the perspective of an evidentiary analysis, careful attention needs to be paid to the conduct of the parties after the relevant conduct has taken place.

69 I have already mentioned the observations in Giumelli, as interpreted in Delaforce, concerning a nonapplication of the socalled 'minimum equity rule', potential exists in an appropriate case for the party estopped to be required to make good the assumption or expectation for which they are responsible in order to deliver a just result.

70 The quality or certainty in any particular assurance or representation that is complained of can bear upon the issue of reliance. Concepts of reliance and detriment overlap and are often intertwined: see Henry v Henry [2010] UKPC 3; [2010] 1 All ER 988 PC, 995 and 1000, referring with approval to Robert Walker LJ's observations in Gillett v Holt (225). So, the three core constituent components of representation, reliance and detriment cannot be wholly compartmentalised. The fundamental elements cannot be assessed too remotely from each other in terms of their factual interplay in any particular case. Nor can their interrelationship be overlooked in the assessment process requiring a court to act flexibly to deliver appropriate relief that is responsive to the unconscientious conduct where it manifests. Unconscientious conduct, if it presents, is the vice to be countered, assessed by reference to the facts of every case.

71 The need for a court to fashion appropriate relief that is responsive to the facts of individual cases can deliver some unique considerations in the context of disputes involving close family relationships. In circumstances of longstanding familiarity and frequent casual contact between family members, a close scrutiny of the whole history and context for what is alleged to have been said or done is called for. But it would be intolerable if every unguarded family conversation conducted around a dinner table, no matter how long ago and no matter what the circumstances were to be opportunistically seized upon with a view to pursuing a curial remedy. Family conversations typically do not approach the level of being contractual in character, they manifest no elements of consideration to support a promise and they are not routinely held in circumstances where parties contemplate legal relations flowing out of a casual passing remark.

72 In the context of family disputes, some recent observations in the Victorian Court of Appeal in Fifteen Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 178; (2009) 24 VR 155 present as helpful cautionary advice concerning the circumstances of family disputes that generate litigation. I refer to observations of Maxwell P, Neave and Redlich JJA, first from [112] [113]:

[112] ... The witnesses were giving evidence many years after the representations had allegedly been made. The circumstances make applicable the approach described by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben's of Australia) (in a passage cited with approval by the High Court when it upheld his Honour's decision):

'[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time.'

[113] Difficulties of recollection are likely, in our view, to be even greater in a case such as the present, where the dispute in question concerns dealings between members of the same family about family finances and inheritance. Recollections of what was said, or intended, are inevitably clouded by the overlay of emotion and by the intrusion of individual hopes and expectations and feelings of entitlement. The emotional overlay is all

the more significant where, as here, those contending that promises were made, and relied on, are seeking to make good their sense of disappointed expectations.

73 In Fifteen Eestin, their Honours continued at [127] [128]:

[127] Because his Honour found that Emanuel's evidence was affected by his poor memory and did not regard Ian and Sabrina as credible witnesses, it was necessary for him to give considerable weight to other matters which supported, or which undermined, the Bergers' claims that Emanuel had made the pleaded representations to them. In Galaxidis v Galaxidis, a case which also involved a family dispute, Tobias JA (with whom Giles and Hodgson JJA agreed) said that, in considering the intention of the person alleged to have made a representation and its effect on the person to whom it was made,

'...it is both appropriate and necessary to consider the whole history of the relationship [between the parties] in order to provide a context against which the conversations...are to be understood.'

[128] It was also necessary for his Honour to take account of the conduct of the parties after the representations were said to have been made. Thus, for example, the fact that Ian took primary responsibility for managing the Investment Trust and Project Hardware without objection from Emanuel, provides some support for the Bergers' claim that Emanuel had previously represented that the Investment Trust would continue to be managed by them. At the least, it is consistent with Emanuel's having behaved in a way that encouraged them to believe that this was his intention.

74 Finally, as to detriment, I refer to the reasons of Handley AJA in Delaforce at [57], [58] and [61], where his Honour applied these well worn observations from Plimmer v Mayor of Wellington (1884) 9 App Cas 699, 714:

[T]he court must look at the circumstances in each case to decide in what way the equity can be satisfied.

75 With those overview principles concerning proprietary estoppels in mind, I can turn to the detailed facts.

76 The parties agreed between them a statement of agreed facts which became exhibit 2 in the trial. In addition, the parties settled upon a chronology of events. In large part, the chronology replicates matters dealt with in the agreed facts, but there are some further aspects of detail. For convenience and by way of introduction, I will set out agreed facts 1 through 38. However, by reference to the agreed chronology, I have at places supplemented the agreed facts with the further information from the agreed chronology.

1. [Dan and Dana] have lived in a de facto relationship for at least 25 years and have three children.
2. [Dan] is the son of [Adaria] and one of two children, the other being Liane Bolger.
3. From 26 May 1986 [1988? - see chronology - check], [Dan] had been the registered proprietor of the property at 7 Ammon Avenue, Ledge Point (Ledge Point property).
4. On 27 August 1990 [Adaria] became the registered proprietor of properties at 7 Modillion Avenue, Shelley and 20 Moness Avenue, Shelley.
5. [Dan] sold the Ledge Point property in about March 1993.

[From the agreed chronology it is ascertained that the Ledge Point property was sold by Dan for $53,000, with settlement occurring on 4 May 1993.]

Purchase of the Boddington Property

1. On 9 February 1993, [Adaria] signed an Offer and Acceptance to purchase the property at 151 Stagbouer Trail, Marradong (Boddington Property) for the purchase price of $120,000.
2. Settlement of [Adaria's] purchase of the Boddington Property occurred on 14 April 1993.
3. [Adaria] has been the registered proprietor of the Boddington Property since that date.
4. To fund the purchase of the Boddington Property, [Adaria] obtained a loan from Town & Country for $125,079, secured by mortgages over the Boddington Property and the Moddillion Avenue property.
5. In July 1993, [Adaria] settled the sale of the Moness Street property and repaid the Town & Country loan and discharged the mortgages on the Boddington Property and the Modillion Avenue property.

[From the chronology it is also agreed that Lot 1, 20 Moness Avenue, Shelley was sold for $158,500 with settlement on 16 July 1993.]

Plaintiffs residing on the property

1. From about mid-1993, [Dan] began travelling from Perth to Boddington to work on converting the shed on the property into liveable quarters.
2. [Dan, Dana] and their children and Russell Howard moved onto the property in about late 1993.
3. [Dan, Dana] and their children lived in the converted shed on the property until about 2006, when they moved into the kit home on the property.
4. Russell Howard lived on the property in a van until about late 2003.
5. [Adaria] has paid all the shire rates and land tax on the property since 1993.
6. [Dan and Dana] have paid all telephone, electricity and gas expenses on the property since 1993.

1. A structure was built on the property in a disused dam in about 1994.
2. The structure has a brick floor, concrete walls, a steel door and electricity connection. A water tank and sea container are located near the structure.

1. In about May 1993, [Adaria] registered the business name 'Hilltop Producers' and opened a bank account in that name.
2. [Adaria] purchased cattle, the plaintiffs ran the cattle on the Boddington Property. It was the parties' first venture into cattle production.
3. In about 1993, [Dan] and Russell Howard built a set of cattle yards from timber on the Boddington Property.
4. The cattle production venture was ceased in about 1995/1996.

1. [Dan and Dana] planted a stone fruit orchard on the property in about the mid to late 1990s.
2. [Dan and Dana] expended effort in relation to the orchard and earned an income from the orchard.
3. [Dan and Dana] abandoned the orchard in 2005 and have not maintained the orchard since that time.

1. From about July 1995 to October 2006, [Adaria] held a contract with the Department of Transport to take children to and from their school in Boddington.
2. The work under the contract was performed by [Dana].
3. In about July 1995 [Adaria] obtained a loan of about $16,000 from the National Australia Bank in order to purchase a Mitsubishi Starwagon vehicle for use by [Dan and Dana].
4. In about 1998 [Dan and Dana] traded in the Starwagon and purchased a Toyota 4WD vehicle.
5. The contract with the Department of Transport was cancelled in October 2006.

1. In June 2000 [Adaria] borrowed $75,000 against her Modillion Street property and purchased a kit home from Fineline Homes.
2. Construction of the kit home commenced on the Boddington Property in 2000.
3. In about early 2006 [Dan, Dana] and their children moved from the shed to the kit home and have resided there since that time.
4. The kit home in the main residence on the Boddington Property.

[From the agreed chronology it is stated that the kit home loan was fully repaid to the Bank (i.e. by Adaria as the facts show) in March 2004.]

Additional loan

1. In March 2004 [Adaria] obtained a $20,000 personal loan from ANZ Bank and provided the proceeds to [Dan and Dana].

1. In about October 2006, [Dana] arranged for a direct debit of $600 per fortnight from her bank account to [Adaria's] bank account.
2. In about April 2007, [Dana] cancelled the direct debt.

1. In about July 2007, [Dan and Dana] lodged a caveat on the property.

[From the agreed chronology, the caveat K264237 was lodged on 11 July 2007 supported by a statutory declaration of Dana of 9 July 2007.]

77 Those facts are uncontroversial. They set the parameters for a dispute which, as I have mentioned, has distilled down to one cause of action founded upon a proprietary estoppel claim arising out of what is alleged to have been said by Adaria to Dan in 1992 in an oral conversation concerning Dan's 'early inheritance'.

78 Apart from the agreed facts and chronology, the parties between them for the purposes of trial produced three bound volumes of trial documents which became together exhibit 1. The documents comprising the three volumes of exhibit 1 can be further classified and identified by reference to the index to the 510 documents comprising the trial bundle. However, many of the documents within the three volume trial bundle were not referred to, either in evidence or in submissions. To that extent they should be ignored (see ts 279).

79 Apart from documents, there was the evidence from witnesses at trial. Dan, Dana and their longstanding friend, Mr Russell Howard, all gave evidenceinchief at trial viva voce, led by counsel in the traditional way. That course became necessary, notwithstanding previous pretrial directions for the filing and exchange of witness statements by all parties. However, the exchanged witness statements of Dan, Dana and Mr Howard gave rise to a multitude of inadmissibility objections by the legal representatives for Adaria. In the main, the objections were legitimate and properly taken. There was no attempt made at trial on behalf of the plaintiffs to defend or rehabilitate these witness statements. In the end, I offered counsel for the plaintiffs an opportunity to proceed on the basis of a viva voce examinationinchief and this was accepted. Dan, Dana and Mr Howard gave their evidenceinchief in orthodox fashion and were then crossexamined. Their witness statements were not tendered and are therefore to be ignored.

80 Two other witness statements prepared on behalf of the plaintiffs were tendered by consent, without need to call those witnesses to be crossexamined at trial. Thus exhibit 5 is the amended witness statement of Paul Watson Patrick, who was a joint owner of Lot 387 before it was sold to Adaria in 1993. The admissible parts of an amended witness statement of Kerry Ann Roney (nee Emery) (pars 1 4 and 8 18) were tendered as exhibit 9.

81 On the other hand, Adaria's two witness statements were not the subject of objections. They were tendered as her evidenceinchief and then read by her (see exhibit 8A, witness statement of Adaria Maria Chinnery dated 3 December 2010 and exhibit 8C, supplementary witness statement of Adaria Maria Chinnery of 7 June 2011). As a matter of fairness, I offered to counsel for Adaria (bearing in mind the evidenceinchief of Dan, Dana and Mr Howard had to be given traditionally) the opportunity to elicit Adaria's evidenceinchief in the same way. But the decision was to proceed by her witness statements.

82 Adaria also prepared a revised and detailed document listing (by reference to its four parts) funds she claimed her records proved she had outlaid associated with Lot 387 since 1993 (see exhibit 8B and its subcomponents parts 1 through 4). Exhibit 8D is a list crossreferencing those documents referred to in the various paragraphs of Adaria's first witness statement to the location of those documents within the trial bundle (exhibit 1) by reference to a page number location for these documents within the three volumes of trial bundle.

83 On behalf of Adaria, a witness statement of Robyn Beverly Pankiw dated 3 December 2010 was tendered as exhibit 7 without need to call Ms Pankiw.

84 There is no argument that Adaria purchased and paid for Lot 387 at Boddington, comprising approximately 100 rural acres, in 1993 (see exhibit 10, an executed offer and acceptance of 9 February 1993 showing a purchase price of $120,000). There is a significant dispute over what, if anything, was Dan's input towards the selection of Lot 387 and the decision by Adaria to follow through on her purchase.

85 According to Adaria, it was solely her decision to purchase Lot 387 after seeing an advertisement for rural properties in the weekend newspaper. Adaria says the advertisement caused her to drive to Boddington where she met a female estate agent. With the agent she drove out to a rural property. She was given a brochure (see trial bundle exhibit 1, vol 3, page 947). The brochure was for Williams Locations 387 and 388. These locations were for sale either separately or together. In the company of the agent, Adaria says that she inspected Lot 387. She says that Dan did not accompany her and that Dan had no involvement in her selection of Lot 387.

86 According to Adaria, she had been interested in acquiring a rural property not too far from Perth within her budget, so she could implement her plan to grow proteas. She says she was attracted by Lot 387 as it had a river frontage, although it did not have a homestead.

87 Returning to Perth, she submitted an offer to purchase Lot 387 for $120,000 subject to conditions. She made arrangements to obtain finance of $125,000 from the Town & Country Bank (trial bundle exhibit 1, vol 1, page 76). Adaria's offer to purchase was accepted and, although the offer and acceptance stipulates a settlement date on or before 26 March 1993, completion occurred on 14 April 1993 (trial bundle, vol 1, page 81).

88 Lot 387 had no residence, merely a shed where the previous owners had resided inside a caravan. It was not Adaria's immediate plan to reside on her rural property. She planned to continue to live in her unit at Moddillion Avenue, Shelley and to travel to Boddington intermittently.

89 On Adaria's version, Dan was not told about Lot 387 until after her offer had been accepted on 9 February 1993. She corrected her witness statement on that point. According to Adaria, upon learning of the impending purchase of Lot 387, Dan requested permission to allow he and his family to live on the property. Adaria says she responded positively to his request. In 1993 she wished to assist Dan and his young family who were experiencing difficult financial circumstances. Dan was either unemployed, having recently left the crayfishing industry at Ledge Point, or just intermittently employed collecting firewood and beekeeping.

90 Adaria says that in early 1993, Dan and Dana with their two infant children were living in rented accommodation in Bassendean (rented from Dan's father, Adaria's first husband). Adaria's two young grandchildren, Isaac and Hannah, had been born in 1990 and 1991 respectively. To assist the family, with whom she then enjoyed a good relationship, Adaria says that she acceded to Dan's request to move to Lot 387 and to renovate and convert the shed, making it suitable for occupancy by his family. This renovation work by Dan would take some time. So it was not until the end of 1993 that sufficient work had been done on the shed to render it suitable for habitation by Dan with his family.

91 Adaria says that she said nothing to Dan to encourage, suggest or imply to him that he would at any point have or receive an ownership interest in Lot 387. Adaria was happy enough to see Dan and his family take up residence on the property and to effectively start a new life in the country, bearing in mind Dan's family's necessitous circumstances at the time.

92 In 1993 Adaria was not asking that any rent be paid by her son. She was happy to have her rural property looked after by Dan in residence with his family, where she would visit from time to time by travelling down from Perth on weekends and during school holidays. Adaria's version of events is contested.

93 According to Dan, he and his mother inspected together a number of rural properties, including properties at Denmark and Toodyay, before learning of, then together visiting, Lot 387 at Boddington. On Dan's version, he and his mother together inspected Lot 387 for the first time and, having seen it, mutually decided that it was just what they were looking for.

94 According to Dan, his mother at the time was heavily influenced by the supposed wisdom and teachings of an ancient warrior known as 'Ramtha'. Dan says that a group based in North America led by one JZ Knight promoted Ramtha's teachings. She had travelled to America three times to involve herself with the group. Around 1992, the group was apparently fearful of forthcoming calamities of an apocalyptic nature predicted to accompany the arrival of the new millennium. So it is claimed by Dan that in 1992 his mother, under the influence of pessimistic predictions for the new millennium, was looking to acquire rural land that was selfsufficient, upon which food could be stored and where some sort of large protective structure (which Dan described as a bomb shelter) could be erected.

95 It was in the context of his mother's concerns towards looming world calamities that Dan says he had a critically important oneonone conversation with his mother and which Dan recounted in these terms (Dan's examinationinchief, ts 101):

She spoke to me a lot about Ramtha's so-called teachings or Ramtha's teachings and how when these changes in the world's circumstances came about, things would be vastly different and that it would be better to have a piece of land somewhere and be selfsufficient and to have a protective structure on that land, so that when calamities came, whatever they were to be, you would be prepared beforehand, have food stored away, all these sort of things. Now, in 92, I believe midway through 92 - it was in the crayfishing off season of 92. I remember it well. There was Adaria and myself in our car, in my car, a blue Volvo. We drove past Moness Street, which is on a corner, the corner of Modillion and Moness Street...

Adaria said to me, in the context of the calamities to come that, '20 Moness Street was going to be yours anyway. Would you like to have it now,' and I said, 'Yes. That would be absolutely fantastic,' and that was looking for the future to create this bunker on a piece of land somewhere and have a piece of land, so we could be self-sufficient.

What, if anything, did you do next in regard to obtaining some land?---Well, then we started looking for pieces of land. Prior to that, I had looked at a property in Boddington. I have liked the Boddington area for a long time. It has good attributes, but Dana and myself had only looked at one block and it was a bush block. It was very steep and there was a long gravel road to get to it and we abandoned that idea, because it was an unviable piece of land. Now, after Adaria had made the offer in regards to Moness Street in Shelley, then it became quite serious to look at pieces of land, because now there was the means to purchase a piece of land.

96 The critical conversation between Dan and his mother, which in the trial came to be referred to as the 'blue Volvo conversation', is said by Dan to have occurred in his car midway through 1992. It is apparent that the conversation was between only Dan and his mother. The following further alleged aspects may be noted:

(a) It is alleged by Dan to be a conversation in 1992 in his car, but directed in terms of its subject matter towards Adaria's properties at Shelley.

(b) According to Dan, it was a conversation held in a context of his mother's anxiety about looming world calamities.

(c) According to Dan's recounting of the conversation, his mother said 20 Moness Street was going to be Dan's 'anyway'.

(d) The conversation is said to involve the question by Adaria to her son framed as whether he would like 20 Moness Street ('it') immediately ('now').

(e) It was after this conversation that, according to Dan, there was an intensive effort to view rural properties at various rural locations, including at Boddington.

(f) There is no documentary evidence to support Dan's version of an entirely oral conversation with his mother in his car.

(g) The conversation is emphatically denied by Adaria, who says she has never even been in a Volvo vehicle with her son.

(h) As recounted by Dan in chief, the phrase 'early inheritance' was not then said to have been used. Rather the phrase allegedly used by Adaria in the car conversation was 'it [20 Moness Street] was going to be yours anyway'.

(i) The plaintiffs' case is not pleaded by reference to a conversation between Dan and his mother about Dan receiving Moness Street immediately.

97 At the end of his examinationinchief, Dan was taken back to the blue Volvo conversation and asked to expand upon how it might relate to Lot 387 and how it was that he came to occupy Lot 387. There was an objection to the question (ts 131). This question was then asked:

In regard to that discussion, can you be any more specific?---Yes. Adaria said that she firmly believed in the Ramtha teachings. She did it. She was with the Ramtha stuff or talked about the Ramtha stuff nearly incessantly at the time she was ...

98 At this point (ts 131) I intervened in an attempt to focus Dan's attention upon the question asked of him in an endeavour to elicit his best recollection of the words allegedly spoken by his mother. This followed:

KENNETH MARTIN J: ... The question that you were asked is her words to you at the time?---Okay. As best you remember them?---Yep. 'This property was going to be yours anyway. Would you like it now?'.

DR HOCKLEY: When you selected the Boddington property, what if any, discussions took place between you and Adaria in regard to that property being yours?---Many, many discussions. It was with the running cattle, 'Yes, do with it as you will;', with putting a fence up in the middle of it, 'Yeah, do with it as you will;', with putting a dam there, 'What do you think about putting a dam on there?' 'Yes, that sounds fine', 'Okay. Well, we'll put a dam on'. It was always ...

99 The exchange is an example of Dan's frequently vague and meandering responses to questions. Dan presented to me as lacking in comprehension skills. He was frequently unable to respond with a direct answer to a question. I also perceived him to be emotionally unsettled by this longstanding dispute in which he finds himself embroiled with his mother culminating in this trial. In short, I did not find Dan to be a reliable witness in relation to contentious matters. In areas of controversy I find myself unable to accept as reliable Dan's versions of events, unless corroborated by an independently verifiable source. Furthermore, as regards financial matters, it was apparent that Dan invariably left such matters to his partner Dana. Dan is an unreliable witness concerning financial matters.

100 Dan related his first visit to Lot 387 which he said was with his mother (ts 132). He said that on the visit he and his mother visited the owners of the property in conjunction with a real estate agent, Mr Terry Nichols. This evidence emerged:

Yes, and how many times did you go and look at this property?---Very first - on the very first visit, decided to take it.

Who was on that visit?---Adaria, myself.

Yes? And you went with Mr Nichols. Is that the right name?---Terry Nichols and Paul Patrick and Betty Williams was at the property.

DR HOCKLEY: Are you able to tell the court what, if any discussions occurred between you and Adaria about the property at that point?---Yes. She said 'Do you think this would be suitable,' and I said 'This is better than anything I've seen. This is absolutely fantastic.' I said 'The soil types look fantastic.' I said 'This is absolutely ideal.'

Yes?---She said, 'Then I'll sell the Moness Street property and we'll buy this. We'll put an offer in.'

Anything else said?---I spoke to her about selling the property in Ledge Point. Look, that wouldn't have been on the first day or so, wouldn't have been on the visit to the property at the start.

Yes?---It was in the very near future after.

101 In response to a further question seeking to ascertain what actually passed between Dan and his mother, rather than Dan's conclusionary assessment, this exchange occurred (ts 133):

To be absolutely specific is very difficult. It's over 20 years, or 20 years ago.

I don't expect you to get it word for word, but as best you can now remember the essence of what passed as her words and the essence of what came back as your words?---The essence of what passed was that Adaria had given me what she said was going to be my inheritance as 'You might as well have it now,' like, 'Take your inheritance now,' and because of that, out of the goodwill of that, I had committed all my resources to that property as well, so I spoke with Adaria about how committed I was and how we were going to make a go of the property in Boddington, with as a background to that, as having it as a safe haven for the years to come.

102 I cannot accept this evidence by Dan as reliable. My overall impression is that Dan over time has constructed for himself a version of a conversation or conversations with his mother which he has rationalised internally to himself over the years to suit his desired outcome for Lot 387. I accept that by now in 2011 Dan has genuinely persuaded himself that his recollection or his synthesis of past conversations with his mother is accurate. However, I cannot Dan's rationalisations as reliable or persuasive.

103 Further, even if I were to hypothetically accept, merely for the purposes of assessing the argument, that Adaria had in some conversation with Dan around 1992/1993 used the words to him about an 'early inheritance' in connection with Lot 387, Dan's position would remain problematic.

104 Such a statement or representation would lack sufficient certainty or specificity as to when Lot 387 might become Dan's property. Living and working on Lot 387 'for a sufficient time' (as counsel for the plaintiffs submitted in opening) is temporally openended. The plaintiffs are unable to nominate a specific time period over which Dan would need to live and work on Lot 387 before he would gain his interest.

105 Such a communication from Adaria to Dan would lack sufficient certainty, assuming that it could be proved. Absent some reasonable level of certainty, the communication would lack capacity to mislead or potential to cause Dan, acting reasonably, to rely upon it.

106 I have referred to the amended witness statement of Paul Watson Patrick which became exhibit 5. Mr Patrick was one of the joint owners of Lot 387. His witness statement contains a brief, but nonspecific paragraph:

1. I did meet Daniel Clifton and Adaria on the property prior to the sale of the property. I discussed the property with Daniel Clifton.

107 However, the fact of a conversation between Dan and Mr Patrick at some point prior to the sale of the property does not suggest this was the first occasion Adaria visited Lot 387. The evidence of Mr Patrick through his witness statement is nonspecific and ultimately, unhelpful to the plaintiffs.

108 In crossexamination (ts 150), it was put to Dan that the blue Volvo conversation as related by him 'never happened'. Dan was emphatic it did, referring to it as 'one of the best conversations I'd had with my mother'. Whilst I accept that that position has now become Dan's belief, again I do not accept the reliability of the evidence.

109 Furthermore, it is apparent on Dan's version of the blue Volvo conversation that it was only he and his mother who were privy to the conversation. Dan's partner Dana was not in the car. Therefore, Dana is not able to provide independent support for the conversation, notwithstanding her attempt to do just that in her evidence which I will relate shortly.

110 Dan and Dana attempt to link the alleged blue Volvo conversation concerning 20 Moness Street, Shelley to the subsequent acquisition of Lot 387 by Adaria in 1993. Although never quite clear, perhaps the implication sought to be made is that somehow the initial blue Volvo conversation evolved to emcompass the funds realised from Adaria's sale of her Moness Street unit that would be applied towards the purchase of Lot 387 at Boddington which would be Dan's 'early inheritance' at some point before Adaria's death.

111 However, the following matters are against the implication that funds realised from the sale of Adaria's property at Moness Street would be Dan's and would be deployed to acquire Lot 387 for him.

112 First, it is an undeniable fact that in 1993 Adaria purchased Lot 387 solely in her own name. Dan knew that. Adaria took out a loan to buy Lot 387 personally with the Town & Country Bank in the amount of $125,000. That loan was secured by a registered first mortgage against Lot 387. By July 1993, the first registered mortgage against Lot 387 was discharged with funds Adaria received as a result of the sale of the Moness Street unit. Dan knew that the Moness Street unit had been sold. Lot 387 stayed in Adaria's name.

113 Second, the version of events whereby Dan was to hold an interest in the funds to be realised from the sale of Moness Street and benefit from their subsequent application towards repaying the loan secured by mortgage from Town & Country taken out by Adaria is inconsistent with how Dan and Dana have framed their pleaded case since the inception of these proceedings in 2007. Since 2007 there have been four statements of claim bearing dates respectively, 1 August 2008, 18 September 2008 and 29 November 2008. The last iteration, albeit bearing an October 2008 date, is actually stamped as being filed at this court's registry on 14 September 2009.

114 There have been significant opportunities since 2007 for Dan and Dana to set down a coherent version of events in relation to an estoppel case against Adaria's untrammelled ownership of Lot 387. Yet at par 5 of the substituted statement of claim dated 14 September 2009, the following appears:

In April 1992, the first defendant orally agreed with the plaintiffs to join with them and assist them to find and buy some land in the country that the plaintiffs would live and work on and repay the first defendant and the property would be an early inheritance for them.

(my emphasis in bold)

115 The theme of Dan and Dana repaying Adaria her outlaid purchase price for Lot 387 is a recurrent feature in all iterations of statements of claim filed by Dan and Dana, bar the first. It is worth considering the pleadings in chronological order:

116 In par 8 of the 1 August 2008 statement of claim the plaintiffs assert an agreement between themselves and Adaria in the following terms:

At this time the first defendant entered an oral agreement with the plaintiffs to join with them and assist them in that they would find and buy some land in the country that the plaintiffs would live and work on and the property would be an early inheritance for Dan.

117 Further, at par 10 of that same statement of claim, the plaintiffs state:

After inspecting and choosing the Boddington property the plaintiffs and the first defendant agreed to purchase it and join in and pool their resources.

118 The character of Adaria's contribution to the purchase of Lot 387 is not clear from the first pleading. It appears that the plaintiffs in the substituted statement of claim dated 18 September 2008 attempted to clarify this point. In par 5 the plaintiffs then state:

In April 1992, the first defendant orally agreed with the plaintiffs to join with them and assist them to find and buy some land in the country that the plaintiffs would live and work on and repay the first defendant and the property would be an early inheritance for them.

(my emphasis in bold)

119 In the 18 September 2008 substituted statement of claim the plaintiffs' allegations regarding Lot 387 take on the theme of a loan made by Adaria to the plaintiffs to assist them to purchase Lot 387 which would later be repaid by them to Adaria.

120 The concept of the loan becomes further entrenched in the later substituted statement of claim dated 29 October 2008, in which the plaintiffs allege in par 6 that:

The plaintiffs would live on and work the land and repay the first defendant the purchase price ...

121 This plea was not amended in the final iteration entitled amended substituted statement of claim, filed 14 September 2009. This was the version that the plaintiffs took with them to trial.

122 However, as I have mentioned, the pleading is now inconsistent with the case sought to be run at this trial, which is that there was no obligation to repay the purchase price and asserts that a benefit was to be conferred upon Dan by Adaria arising out of the proceeds of the sale of 20 Moness Street, Shelley (see also par 6 for another averment as to the repayment of the Lot 387 purchase price to Adaria).

123 This startling late change in the factual position of Dan and Dana contended for at trial on this rather central point calls into question the reliability of the plaintiffs' factual case.

124 Dana in her evidenceinchief told of how in 1988 she moved in with Dan in his house at Ledge Point whilst Dan had been working as a deckhand in the crayfishing industry. Dana left school in year 11 (ts 192). Her first job was working for BHP in the North West in the mining industry. She moved back to Perth when she was 19 and met Dan at Ledge Point. She worked at a hotel at Lancelin for a time (ts 192). Dana worked at a vegetable farm after she had moved in with Dan at Ledge Point in around 1988 (ts 193).

125 Dana gave birth to Isaac and Hannah in 1990 and 1991. Dana's evidence was that around this time Adaria was a frequent visitor to Ledge Point (ts 190) and that they had 'had conversations about where we were going to live'. Adaria had even filmed the birth of one of the children, providing some insight towards how close the family was at that time.

126 From Ledge Point, Dan and Dana, with two very young children, moved to Bassendean where they rented from Dan's father. Dana related (ts 193):

The lifestyle at Ledge Point didn't really suit us for our children and the school was far away so - we had an opportunity to rent a house in Bassendean that belonged to Danny's father so we moved to there when my daughter was six months old, so 92.

127 At this time Dana referred to Dan's employment as 'bits and pieces' (ts 193), like beekeeping and firewood. Dana was not able to take on employment at this time as she was looking after the two children under 13 months of age. Subsequently, Dana had her third child in 1995.

128 Since moving to Boddington, Dana attended TAFE. She has completed years 11 and 12 school certification.

129 At (ts 193) Dana related her first instance of a conversation with Adaria. Her evidence unfolded (ts 193):

She - Dan mentioned it to me at first that his mother had offered him like an early inheritance and, you know, to go and look at land and to live on a piece of land. He told me first but then I was in many conversations in Shelley and Bassendean when Adaria mentioned this to Dan.

130 Even as Dana related it in chief led by counsel, her first knowledge about a conversation between Dan and Adaria concerning a property confirms that her knowledge came (unreliably) from what Dan passed on to her on the subject of a 'early inheritance'.

131 Dana through her evidenceinchief appeared to try to provide independent support for Dan's evidence concerning the blue Volvo conversation of 1992 even though she was clearly not privy to the alleged conversation. Dana was asked the following in examinationinchief (ts 193):

When you were in Bassendean are you able to tell the court what if any conversations you had with Dan's mother about what you should ?---Yes, there was many conversations around getting property. She - Dan mentioned it to me at first that his mother had offered him like an early inheritance and, you know, to go and look at land and to live on a piece of land. He told me first but then I was in many conversations in Shelley and Bassendean when Adaria mentioned this to Dan.

As a result of this, did they go and look at any properties?---Yes, they did. They looked at many properties. There was only one time that I went with them with the two kids and that was to Denmark. Yes, we went down to Denmark and I remember specifically one property because we got there and they had, you know, like two massive dogs. I stayed in the car at first and Dan and Adaria - they took Isaac in with them and I was in the car with Hannah but after a while I got out and went in. I remember that quite clearly.

Can I just take you back a step with that. Do you have any knowledge of the Moness Street property?---Well, I have been there. You know, I have been in the Moness property when Adaria lived in the Moness property.

132 It is apparent that Dana's core insights concerning what might or might not have been said between Dan and his mother are from what Dan has said to her, either accurately or inaccurately. Her knowledge is therefore only indirect. It is inadmissible hearsay. It does not provide a reliable, independent plank of support for an estoppel on the basis of the alleged blue Volvo conversation or some other clear conversation between Adaria and Dan.

133 At (ts 194 195) I sought to clarify the level of Dana's direct evidence on the issue. This exchange occurred:

KENNETH MARTIN J: ... Ms Cowan, you told us about Dan telling you about his conversations with his mother about an early inheritance?

---Yes.

You then said there were many conversations that you were involved in with Adaria later on that subject?---Yes

Can you tell the court about your best recollection of what happened at one of them?---My best

What were the words that were exchanged? I know you won't remember it precisely, but to the best of your recollection, what was passed in terms of words between the people in the room?---'This will be great for you, Danny, because, you know, like you've got an opportunity here. You might as well go and live there for the rest of your life. It's like an early inheritance, my help to you.'

What are we talking about, Moness Street or something else?---No, no, no. Well, this was - we're talking about - I'm talking about the property, getting some property.

I just want to know what the subject matter of what is being discussed is?---About property, getting some land.

Property in general?---Yes - yeah, well, land in general.

So how does it go?---Well, she suggested that would be a really good idea, to get some land in the country. She could use money from Moness Street and that it would be Danny's early inheritance.

What's 'it'?---To be able to live on the - to have the property. Well, I'm getting confused now, sorry. The money that she'd get from Moness Street, she was going to purchase some land. That could be Danny's early inheritance. He would go and live there with his family.

Yes?---Get an early inheritance, because it would make his life easier. Well, it would make all our lives easier and why not have it now, because, yeah, she wanted to help, make our lives easier.

134 The above transcript provides some insight into the overall vague nature of Dana's evidence at trial. The evidence also presented to me as being significantly rationalised well after events related, to try to best suit the plaintiffs' case. It was also influenced I find, by the emotive nature of this family dispute. Similar to the position I reached with Dan, I am unable to accept that Dana's evidence is reliable on controversial issues, unless independently supported. Moreover, Dan and Dana cannot be assessed as corroborating each other's evidence in controversial areas.

135 It is uncontroversial that, after settlement occurred on the acquisition of Lot 387 by Adaria in midApril 1993, Dan spent the rest of 1993 on the property at Boddington where he would camp out. Dan used this time converting the shed to suitable living accommodation for his family. It took him until the end of 1993 to complete the work.

136 Dan says he spent $8,000 of his own money in restoring the shed. However, there is no independent evidence to verify this assertion. On the other hand, Adaria says that she opened an account at the local Boddington hardware store in her business name 'Hilltop Producers'. She says that Dan was authorised to make purchases charged to that account. Adaria says she also applied more of her own funds in the upgrading of the shed by purchasing materials used.

137 Dan says that funds he spent at Boddington were residual funds following the sale of his Ledge Point property for $53,000 in 1993. But from that sum (see trial bundle exhibit 1, vol 1, page 89) Dan needed to pay off the loan secured by mortgage against his Ledge Point property and to discharge two other significant debts of his. One debt comprised his personal income tax assessment in the amount of $11,414.42 (see trial bundle exhibit 1, vol 1, page 80). The other significant debt was a fine Dan had incurred in the amount of $9,000. Dan's fine arose as a result of a conviction for unlawful cultivation of cannabis. Bearing in mind the loan secured by mortgage as well as his two debts which needed to be discharged, any residual funds left for Dan after the sale of Ledge Point would have been minimal. Dan was either unemployed or doing 'bits and pieces'. Dana was caring for two very young children. I am not persuaded Dan applied any of his own funds (as distinct from his labour) towards upgrading the shed on Lot 387 in 1993. The assertion is uncorroborated and contradicted by Adaria. The strained financial circumstances of Dan's family were, I find, causative of the family's move to Boddington, where they could live in rural surroundings effectively rentfree in the beginning and begin a new life as a family after Dan's brush with the law and away from a Ledge Point lifestyle that Dana said 'didn't really suit ...' (ts 193).

138 Adaria's evidence is that via her cheque account she met all expenses incurred at Lot 387 at this time. She would pay off her account at the local Boddington hardware store where Dan would charge up materials required for the shed renovation. Adaria would discharge the hardware account at regular intervals. I prefer and accept Adaria's evidence on this issue (see part 2 of exhibit 8B for amounts identified as being transferred from Adaria's cheque account to the account of Hilltop Producers in November and December 1993 amounting to some $2,000, which I find established).

139 By the end of 1993, Dan's labours had rendered the shed ready for habitation by his family. From that time Dan, Dana and the two children all moved to Lot 387 at Boddington and took up permanent residence, occupying the renovated shed. They remained there living in the shed until 2006, at which time they moved into a kit home that had been assembled on Lot 387. During 1994 to 2006 a friend of Dan and Dana's, Mr Russell Howard, also took up residence on Lot 387 occupying his van, or what has also been referred to as an old bus.

140 At (ts 198) in evidenceinchief, Dana described herself as having had 'a lot of baby brain then too'. In crossexamination Dana was asked to explain 'baby brain'. She responded:

I had two children under 13 months, so unless you've had two children under 13 months you might find it a bit difficult to understand. You don't really think of anything much except what you're doing.

So you were preoccupied with the children?---Well I was practically breastfeeding both.

(In context Dana was referring to the period around early 1993, around the time of the purchase of Lot 387 by Adaria).

141 Dana's admitted position with her very young children is understandable. But it does not assist the plaintiffs.

142 In examinationinchief, Dana explained her position over what has been referred to as 'bus run' money:

HOCKLEY, DR: Can you tell the court what if any arrangement was made in regard to the income for the bus run when it was taken up?---The income for the bus run used to come to the farm so what would happen is I would get Adaria to sign the cheque and I would either put it into my bank account or Danny's bank account. Out of that we would pay the ANZ Bank where ADA had the $16,000 loan. Residue of any of that, which wasn't that much, would go back into the bus, you know for fuel or

What, if anything, are you able to tell the court about the payment of the bus run money to pay off the kit home loan?

---When we got the kit home, when Adaria got the kit home loan, then the money from the bus run went to Adaria. It was my understanding that money was to pay off the $75,000 loan for the kit home. [ts 212]

KENNETH MARTIN J: Sorry, we're talking about the bus run money. When it starts in 1995, cheques are coming down to the property?---They're coming to the property, yes.

And the cheques are made out to who?---To Adaria Chinnery.

To Adaria, and so you either give them to Adaria or, what, they get endorsed ?---I used to get - when I saw Adaria, she'd sign the back of them, because that's the only way I could put them into my account.

Yes?---And then from my account, I would - I had a little pay-in book for ANZ for

Yes?---But I've no idea if I've still got it.

This is a joint account you operate with Dan?---Yes.

All right. So the cheque payable to Adaria get endorsed, gets paid into yours and Dan's account and it stays there or what?---Well, I guess it stays there and then I'd go up to ANZ or - you know, and pay the car loan through that. I have a little - I did have a little deposit book for it, but I don't know where that is at the moment. Yeah, that went to paying the Mitsubishi Starwagon.

Now, then the Mitsubishi Starwagon gets paid off with the $500 payment that you make in Mandurah?---Yes.

Then you take out another loan, this time in Dan's name?

---Yes.

For the Toyota Landcruiser?---Yeah.

That's about 14,000 or 16,000 dollars?---16,000.

16,000; you're paying that off?---Yes.

Then at the same time, the cheques keep coming?---The cheques were

Or that stops or that changes?---It did for a little while and then it - she changed her address. Then they went directly to Adaria at her place in Moness Street - in Modillion Street in Shelley.

All right, and when was that?---That would have been

Around the time of the kit home?---Yeah, around the time of the kit home. I can't give you an exact date.

143 In 1995, Isaac and Hannah were in preschool and kindergarten respectively. Dana explained how, after she came out of hospital, having just delivered Brody, that only some three weeks later she started driving Isaac and Hannah to school in Boddington in a Mitsubishi Starwagon which had just been purchased (ts 204). The bus run was a drive into Boddington from Lot 387, picking up the three other children along the way (ts 204). Correlatively the bus run contract involved delivering the children home at the end of the school day. Dan and Dana's newly arrived infant son Brody would go along with Dana in a car seat as this work began in 1995.

144 At (ts 205) Dana refers to monies being paid into the ANZ Bank, where Adaria had her $16,000 loan. A licensing form from the WA Police Department for the Mitsubishi Starwagon (see exhibit 1, vol 1, page 199) indicates that the vehicle was registered in the name of Hilltop Producers (Adaria's business name).

145 In the year 2000, according to Dana (ts 205), the Mitsubishi Starwagon was 'just about wrecked'. A Toyota Landcruiser was now acquired. Around this time (pre2000) Dana says she went to an ANZ Bank branch in Mandurah. She said (ts 206):

I knew there wasn't that much left on the Mitsubishi loan. I asked what it was. The girl said to me because the loan wasn't under my name that she couldn't actually tell me, so I said 'Well, if I put $500 in will that clear it?' and she goes, 'Yes' and I would imagine there was a residue of that - you know it wasn't exactly $500 or she wouldn't tell me - so I imagine there is a residue and that would have gone to Adaria.

146 Dana was adamant her payment was made at the ANZ Bank in Mandurah, not to the National Australia Bank. The documentation in exhibit 1, vol 1, pages 195 198 indicates that a loan in the amount of $16,000 was taken out from National Australia Bank by Adaria with the final repayment due on 20 July 2000, on the basis of monthly repayments of $365 at an interest rate of 13.05%. In the absence of documentation I am not able to reconcile the inconsistency between NAB and ANZ. It matters little. I find, on the basis of Dana's evidence, that the loan of $16,000 incurred by Adaria with the National Australia Bank in order for Hilltop Producers to acquire the Mitsubishi Starwagon in 1995 was discharged in mid2000.

147 The Landcruiser acquisition was made without Adaria's involvement. This time the loan was taken out in Dan Clifton's name. The Landcruiser loan was met by Dan and Dana on the basis of repayments to the National Australia Bank at Boddington (see exhibit 1, vol 2, page 389, showing fortnightly repayments in that amount, not monthly repayments). The loan taken out for the Landcruiser appears to have been in the amount of $16,000. This loan was the direct responsibility of Dan and Dana.

148 At this time, the issues of an acquisition of the kit home for Lot 387 and the taking of a personal loan by Adaria in the amount of $75,000 arises.

149 As I mentioned, Adaria denies that there had ever been in 1992 a blue Volvo conversation with Dan. I prefer her evidence by way of denial on that issue over Dan's.

150 Adaria related circumstances in which Dan and his family had come to take up residence on Lot 387 (see pars 44 63 of her witness statement, exhibit 8A). Unlike Dan, Dana and Mr Russell Howard, Adaria's evidenceinchief was given by her reading out her two witness statements, exhibit 8A and 8C. The process of Adaria reading her evidence gave me less of an insight towards her as a reliable witness. Nevertheless, she was extensively crossexamined and, through that process, I was able to obtain a better insight into her overall reliability which I assess, in the main, to be acceptable.

151 Adaria presented at trial as an intelligent, determined and hardworking woman. She was born in Poland in December 1940. She has been employed for a long period as a school teacher. She has taught in accounting, commercial law and more recently in computing. Her full time teaching career spanned 1975 to 2006. In addition to her work as a school teacher, Adaria has worked as a curriculum and syllabus writer for the Education Department. She has worked parttime in the classroom as a teacher at Rossmoyne Senior High School since 2008, teaching computing (now one day a week). She has also worked, over and above continuing in her occupation as a school teacher, as a finance broker. She has supplemented her school teacher's income by her hard work. As a result she has managed to acquire a number of properties.

152 Dan was born in 1960. Adaria's second child, Liane, was born in 1964. Adaria is now estranged from both children. Adaria has been married twice. But both marriages ended in divorce in 1981 and 1985 respectively. She explained an interest in meditation that led her to travel to the United States with friends on several occasions. Her interest in meditation led to her contact with the Ramtha group for a time, but I would assess that she was no mindless cult follower. Adaria's core intellect prevented her ever losing a proper perspective about business decisions and money.

153 Adaria's witness statement suggested Dan only learned about Lot 387 after it had been settled. Subsequently and through crossexamination, this was clarified by Adaria to be that Dan learned about Lot 387 after Adaria's offer to purchase had been accepted, but before settlement occurred on 14 April 1993 (the contract by offer and acceptance being entered into on 9 February 1993).

154 The plaintiffs sought to make a lot of a shift in Adaria's evidence in crossexamination upon this point, on the basis it ought be viewed strongly against her overall credibility. I am not so persuaded. In the scheme of things, bearing in mind the scrutiny of events which extend back 19 years to 1992, some temporal confusion between a contractual commitment under an offer and acceptance for Lot 387 and a settling on that purchase is hardly remarkable. Her revision seems to me to be a more than explicable error of detail.

155 Adaria's evidence was that she had planned to grow proteas on her rural property and that after Dan had visited Lot 387 he asked whether he and his family could live there. The shed could be converted, Dan thought, cheaply and easily into living accommodation by partitioning the shed into bedrooms and a kitchen/living area. Adaria explained in her witness statement:

1. At the time [that is, in the first quarter of 1993] neither Dan nor Dana were working (to my knowledge) and I was concerned about some of the company they were keeping. I told Dan that he and Dana could stay at the Boddington property until I decided to retire and started growing proteas.
2. It was agreed between Dan and me that he would provide the labour for the work to be undertaken and I would pay the cost of materials.
3. I believed that Dan and his family were only going to live at the Boddington property for a short time.

156 Adaria explained how she opened an account at the local Boddington hardware shop in Adaria's business name of Hilltop Producers and allowed Dan to charge to that account the materials he needed to convert the shed to viable living accommodation for his family. She also says she paid his expenses associated with the work. Adaria's business, Hilltop Producers, also purchased some cattle to run on the property. Adaria met the expense of the acquisition of the cattle. I accept this evidence.

157 Subsequently, Adaria learned that Dan's friend, Mr Russell Howard, had moved onto the property and was living there in his old van or bus. Adaria did not object to that arrangement, although she did not know that Mr Howard himself was also running cattle of his own on Lot 387, thereby diminishing the natural feed available for the Hilltop Producers cattle.

158 Adaria's witness statement relates how she advanced funds to Dan in the early period during which he and his family lived in the converted shed (from the end of 1993 until 2006 when they moved into the partly finished kit home). Adaria says she made a loan of $8,000 (par 61 of her witness statement) so Dan could purchase a vehicle whilst his existing vehicle, a Zephyr, was repaired. She says the $8,000 was never repaid (par 61). I accept this to be the case.

159 Adaria related that from 1993 she paid all Shire rates and land tax on Lot 387. There is no controversy about this.

160 At par 65 of her witness statement (exhibit 8A), Adaria related:

1. I paid for clearing land, building a retaining wall, demolishing the dam, building a cellar, installing a new dam, installing a bore and pumps, water tanks, and bought a Ferguson tractor and a bucket for the tractor. Between 1993 and 1997 all the operating expenses, buying cattle, feed and capital improvements were paid for from my Town & Country bank account amounting to $114,314.97. The funds came from the residue left from sale of the Moness Street property, borrowings of $5,000, $13,000, $7,000, $5,000, proceeds from sale of cattle, tax refunds, $8,759 and my salary.
2. Approximately $46,170 was transferred from A M Chinnery cheque account to Hilltop Producers Town & Country cheque account. In addition, two loans of $13,000 and $7,000 were taken out in January and March 1995 and credited to Hilltop Producers account.
3. So far as I am aware, Dan and Dana have paid for their gas, telephone and electricity use. So far as I am aware, the accounts were addressed direct to the property.

I find all those facts to be established. They are essentially uncontroversial.

161 Adaria says (par 71) she closed her Hilltop Producers bank account in 1997/1998 because she was not using it anymore. She had been disappointed with the low returns from the cattle. In 1995 or 1996 she gave the remaining cattle to Dan (then, some 36 head). She told him he could keep the proceeds of any sales. In par 72 she related:

The property's boundaries were fully fenced when I bought it. Additional fencing and pens for the cattle were built by Dan and Russell Howard. They did the work and I paid for the material.

162 No evidence emerged at trial about any enhancement to the value to Lot 387 by fencing or cattle pens towards which Dan and Russell Howard provided their labours in construction. I find that this presents as insignificant in a monetary sense.

163 Between pars 76 and 85 of her statement Adaria related circumstances in which she paid for the construction of a concrete tank and a concrete lid on the property which was delivered and installed around December 1994/January 1995. She also acquired an old sea container at an auction in 1996 which was placed next to the covered concrete tank. Dan did some earthworks around these acquisitions located on a disused dam site on the property. Adaria describes these structures as a cellar and storage area for dried flowers and other stores. I accept that.

164 Dan and Dana attempted to portray these structures as Adaria's folly, being a Ramthastimulated bomb shelter set up with an eye to apocalyptic events likely to be encountered accompanying the new millennium. I was not moved by what I assess to be a fairly shallow effort to belittle Adaria by Dan. Adaria presented to me as a levelheaded and commercially astute woman. Whatever interest she may have manifested towards the teachings of the group concerning the ancient warrior Ramtha, prior to the turn of the millennium, that interest did not in my assessment ever detract from her capacity to reach rational commercial judgments or reduce her overall business acumen. Her intelligence and knowledge base as a teacher of business made her significantly more sophisticated in commercial terms than her son Dan or his partner Dana.

165 Adaria related circumstances concerning bus run money between pars 86 106 of her witness statement.

166 Tied to these events is the fact Adaria had borrowed $16,000 from the National Australia Bank to buy, in the name of Hilltop Producers, a Mitsubishi Starwagon at auction.

167 The Mitsubishi vehicle was needed for Dana to drive on a daily basis her own two children and three other children in the neighbourhood to the local primary school in Boddington, then drive them home. Dan and Dana's vehicle at the time needed repairs and was not appropriate for this purpose. A contract with the Department of Transport was entered in Adaria's name, although the family arrangement was that Dana would do all the driving in the new vehicle. As related in par 90, Adaria says:

Dana said she would take charge, be the driver and that I would get the fortnightly remittances in return for them living on the property.

168 Adaria says it was only after arrangements for the bus run had been entered contractually in July 1995 that the need for a new vehicle was realised, thereby causing Adaria to incur her $16,000 personal loan with the National Australia Bank.

169 Remittances from the bus run contract were made from the Department of Transport as payments of $600 per month (in round terms across a school calendar year, $6,000 per year). The funds would be remitted by a Department cheque made out to Adaria, posted to Lot 387. When Adaria would visit Lot 387, she would endorse these cheques over to Dan and Dana so the funds could be paid into an account in their names. From Dan and Dana's account funds were paid across to Adaria's loan account taken out to fund the Mitsubishi Starwagon.

170 Adaria says that it was not until 15 August 2001 that the Department of Transport began to make the payments direct into her own bank account. She had no remittance advice records prior to that time.

171 In her personal tax returns, Adaria declared the bus runderived remittances, which were used to meet Adaria's repayments on her NAB loan, as her income. Against that income Adaria claimed a deduction for an amount shown as being paid by her to Dana as salary for undertaking the driving work. This was said by Adaria to have been under the advice of her tax agent (par 95 of Adaria's witness statement). (See exhibit 1, vol 1, page 265, Adaria's tax return showing Ministry of Education income in the 1996 financial year in the amount of $5,033, less a claimed deduction for the salary of the driver of $4,680). Depreciation is claimed against the Mitsubishi Starwagon (it would seem) of $3,581. Adaria's tax return also shows that Adaria declared rental income of $180 per fortnight, generating the annual sum of $4,680 that is declared as income (the equivalent amount to Dana's deductible salary - see exhibit 1, vol 1, page 265). The accounting presents as creative at this point.

172 In any event, I find Adaria incurred a debt in her own name to fund the acquisition of the Mitsubishi Starwagon by Hilltop Producers in the amount of $16,000 with the National Australia Bank in mid1995. By a roundabout route, cheques from the Department of Transport would arrive at Lot 387 and ultimately the funds found their way from Dan and Dana's account to Adaria's loan account, effecting a repayment regime for Adaria's Mitsubishi Starwagon loan. It is not suggested and I find that Dana was not told that she was receiving a salary for her bus run efforts. I also find that Dan and Dana were not told that Adaria was declaring $180 per fortnight as rental income from Lot 387. Rent simply was not discussed until much later as I will relate.

173 There are three main loans relevantly taken out by Adaria which are at issue. The first was the $16,000 for the purchase of the Mitsubishi Starwagon which I have just dealt with. Purchase of the Starwagon does not seem to relate to the claim for proprietary estoppel. This loan was repaid in July 2000 from the bus run proceeds. After that time the ongoing funds received by Adaria, arising from Dana's continued driving efforts, raises a question as to the basis upon which Adaria was receiving this income, in the amount of $6,000 per school year.

174 The second loan was in 2000 for $75,000 for the purchase of the kit home for Lot 387. The plaintiffs allege they were to repay the amount of $75,000 to Adaria. However, Adaria says that the $75,000 she borrowed was not loaned to Dan and Dana or applied to their benefit. Rather, Adaria says she purchased the kit home for herself for $50,000 and she used a further $25,000 in kit home related expenditures. She says that the plaintiffs never gave her money to reimburse her bank debt of $75,000, which she fully discharged in 2004.

175 Lastly, there is a loan in 2004 for $20,000 again taken out by Adaria from her bank with the proceeds being advanced at the behest of and for the benefit of Dan and Dana. The parties do not agree upon what this sum was paid towards. The plaintiffs allege the sum was paid to finish the kit home. Adaria contends that it was paid in satisfaction of a $16,000 debt outstanding on the Landcruiser purchased by Dan.

176 Overarching the arguments about the three loans is the question of bus run money received by Adaria after mid2000, once the Starwagon loan was paid off, and on what basis.

177 By her defence and counterclaim of May 2011, Adaria characterised the initial 1993 arrangements between the parties as an agreement by her to let the plaintiffs live on Lot 387 rent free. However, at par 25.5, on a commencement in 1995 of the bus run, Adaria characterises the bus run income she received as rent.

178 In her witness statement at par 90, Adaria characterises the Lot 387 occupancy arrangement for Dan and his family as a licence, whereby Adaria received money from the plaintiffs in return for allowing them to live on Lot 387. Unlike rent paid under a lease, Adaria seems to dispute she granted Dan or his family the exclusive possession of Lot 387.

179 Adaria accepts in written closing submissions of 2 August 2011, that she received some monies from the plaintiffs. At pars 41 and 42 it is submitted:

Bus run

What is not in dispute is that from between 2001 and 2006 the mother did receive around $6,000 per year gross income from the Bus Run...Prior to 2000/2001 the Bus Run income was of no benefit to the [first defendant] as it went to repay the $16,000 loan to purchase the Mitsubishi Star Wagon...That was described by Dan as a 'good deal' [ts 118] and Dana also agreed with that assessment [ts 254].

During that time the first defendant also loaned to the plaintiffs $20,000 in March 2004. Of that, about $16,000 was used by the plaintiffs to pay of an existing car loan they had for a Toyota personnel carrier. There is a disagreement as to what cash payments, in addition to the Bus Run, were made to the mother in repayment of that advance. The first defendant estimates that she received about $6,000 [ts 438] and Dana Cowan says it was more.

180 Questioned during crossexamination over her receipt of bus run money and whether the payments were received as rent, this exchange with Adaria occurred:

HOCKLEY, DR: Can I take you to page 264 of volume 1?---Yes.

On this page you have got 'Property' - this is like part of your tax return for the 1996 year mentioned at the top of the page - 'Property Ashcroft Road, Boddington. Due date first earned rental income: 1/7/96'?---Mm'hm.

It's true that you never told Dan or Dana that they were paying rent from 1/7/96, did you?---Excuse me can I correct

Sorry, no, I asked you the question. Did you or didn't you?---I did not.

You did not tell them. Yes?---No, hang on a minute. As far as this is concerned - could you please ask that question again?

I'm just asking you that you didn't tell Dan or Dana that they were paying rent from 1/7/96?---Okay. The answer to that is when they approached me to take out the bus run - Dan couldn't do it in his name because he wouldn't get a police clearance and Dana said that it would interfere with her Centrelink

Just take a moment. I think you are being a bit ?

---No, let me finish please.

... They said if I do this, take out the contract and get it, that I could keep the proceeds of that money for their right to stay on the property, and I interpreted 'stay on the property' meaning that payment that I would receive for the bus run would constitute rent on the property. 'Stay on the property '

HOCKLEY, DR: You didn't tell them that they were paying rent at that time, did you?---But they weren't paying rent at all because the money was - all that money after 2001 was going off against the loan.

KENNETH MARTIN J: Mrs Chinnery, the question was: you didn't tell them that they were paying rent at the time?

---Yes

...The question is: did you tell them in words?---No, not in those words. No, I did not.

... In 1995 I did not say that, but in 1996, when these tax returns were done, next time I went to Boddington I had these two forms with me, photocopied, and I gave them to Dana and I said, 'This is the way that the accountant has treated the bus run money, that part of it was for you driving and of course then it was transferred as rent.'

...

HOCKLEY, DR: But there was no rental agreement in - - -?

---No, no rental - like, no written rental agreement was made.

So these words 'Rental agreement' is incorrect, isn't it?

---This was done by the accountant, yes.

I've mentioned what the accountant and his obligations were just before lunch, so I won't repeat that. So what you say here is, '180 per fortnight as per rental agreement, 4680.' So what you're saying is that you were receiving rent from Dan and Dana of 4680 for the financial year. Is that right?---I wasn't receiving that money but it was for living on the property and driving the bus.

But what you're saying here is as per rental agreement you're receiving rent of 4680, and I put to you you weren't getting any rent at all, were you?---No.

In actual fact you got no rent. So this entry is false, isn't it? It's incorrect?---Not according to the accountant that - my tax consultant.

I've been there. If we just turn over the page to 265 and have a look at that?---Mm'hm.

265 says, 'Motor vehicle expenses, driver, 4680'?---Mm'hm.

So this means - you tell me whether I'm wrong - that you paid the driver - that's Dana - 4680 for the financial year. Is that right? That's what a reading of this means?---Yes. The reason - - -

Did you pay her 4680?---No.

Did you pay her anything?---No.

No. This is false, isn't it?---No, it isn't.

Because you haven't got any money, you never paid her money out, and you never got any money in, the same amount?---The money that she received was my - the cheque for the bus run (ts 423 424).

181 Later, at (ts 429) and following, Adaria gave this evidence in crossexamination regarding the $75,000 she borrowed to fund her purchase of the kit home and the incidental expenses:

[ts 434] The repayment for the kit home: evidence has been given by Dan and Dana that it was to be repaid by 600 a month from the bus run?---Not correct.

That was the firm evidence of both of them, that the 600 per month would be going to pay off the kit home loan?

---That is not correct. For a start - you know, even if remotely the bus run - I had to pay tax on that. There was no mention at any time - when I take out a loan I make a commitment and the commitment was for that money to be taken out of my cheque account - you can see some of the withdrawals on my statement - and from this statement which we are just looking at, it was transferred to the loan statement, and that's all that took place.

[ts 435] Their evidence is that there was an agreement with you that the money for the bus run from 2000 onwards would be to go to pay off the kit home loan?---That is not correct. The agreement right from the start, 1995, was the proceeds from the bus run would come to me for their right to stay on the property. The fact that it was used to August 2001 to pay off the motor vehicle - which I don't know when it was repaid, and after that it was just to come to me for the privilege of them living on the property. There was no mention of - I would not take out a loan unless I could meet the repayments, not from anyone else but from my own resources.

In regard to the repayment of this loan Dan and Dana have also given evidence that they also paid an extra 150 a week cash?---That never ever took place and they are unable to produce any documentation to that effect. I can swear on that on 10 bibles, for that matter, because those documents do not exist because it never happened.

They have given strong evidence that at various places they paid you the 150 a week or approximately that amount?

---That never happened. The only cash

You deny ever getting cash from them?---No, no, let me finish. The only cash that I received from them is in regards to the $20,000 loan that was given to them in April 2004.

We will come to that in a moment. I'm not trying to mix them up, I'm trying to do them sequentially?---As far as this loan of $75,000, no money, no cash payments of any sort were given to me.

182 The proceeds of a $20,000 personal loan Adaria took out in early 2004 were applied to two purposes. First was to benefit Dan and Dana by paying out their outstanding car loan. The second concerned a payment of approximately $3,900 to meet the account of an electrician who did work relating to the completion of the kit home (which was not occupied by Dan and Dana and their family until 2006).

183 Dan and Dana accept that the $20,000 loan taken out by Adaria in 2004 was repaid by Adaria to her lending institution by 2006. Dan and Dana say that they owe monies to Adaria in respect of the $20,000 she outlaid from the proceeds of the 2004 loan and applied to their benefit. The funds paid to an electrician for work concerning completion of the kit home would probably enhance the value of the kit home on Lot 387. But evidence about that issue was, once again, nonexistent.

184 An exchange with Adaria on this issue in crossexamination was in the following terms:

In 2004 there was a supplementary loan taken out?---That's right. That's correct.

If we turn to page 703 - and I think that's in the last volume?---Yes, I have that in front of me.

703 is a loan from the ANZ for $20,000. Correct?---That's correct.

This was a supplementary loan, and on 718 is where you were taken to this in evidenceinchief, about 12 March with a low drawn-down of $20,000. Correct?---That's correct.

If I then take you to page 702 and on 16/3/04, this is an account of NAB. I think Dana gave evidence that she should put this cheque into Hannah's account?---Mm'hm.

She put in the 20,000, in there, and then 17,000 withdrawn on 19/3/04?---Mm'hm.

What she said is she paid off the Toyota car with it?---I think it was the land rover.

The land rover; I will check on that or my instructor will check on that. At the bottom of the page there, 1/4/04, there was a withdrawal for 3916.96. Do you see that amount, right at the bottom entry on the page?---Yes, on

We are on page 702?---Yes.

If we then turn over to page 704?---Okay, mm'hm.

There is a tax invoice from Sea Ray Electrics for 3908.96?

---Yes.

The $8 difference in the cheque, Dana said she brought a bank cheque for the difference, for $8, and that's where it went?---Mm'hm.

That's where that amount is paid for and then if we go to 820?---Yes.

820, on 11 April, this is your account with the ANZ Bank?

---Mm'hm.

Is where you made a payment and the loan closed. Correct?

---That's correct.

So this loan closed on 11 April - I will make sure I get the year right - 2006?---That's correct.

Did you tell Dan and Dana that that loan had been paid out in April 2006?---I did not see any need to tell them that it was paid. They asked for me to give them $20,000 as a loan and I gave them. Their responsibility was to repay me that loan, not for me to give details of my accounting, what I owed or what I don't owe.

So they didn't know how much they had repaid off the loan?

---No, that was - this was my obligation to the bank.

Yes?---I made the payments. That was my obligation, my responsibility, to pay the loan back to ANZ. It was their

...

KENNETH MARTIN J: Can we just ask what money came in from Dan or Dana to repay you the $20,000 which was the subject of what you lent them from your borrowing, because I understand that you paid back your loan to ANZ?---I'm not sure. It was between perhaps five to six thousand dollars. $6000 would be absolutely

...

HOCKLEY, DR: Just say that again, the last bit. 'When you have paid the last '?---I said to her, 'Every time you give me cash, you keep a record.' I wanted her to take responsibility. I said, 'You keep a record of all the money you pay to me. I will not charge you - take interest into account' - though I had to pay interest on my loan, but I said, 'You - all you are required to do is pay me back $20,000 and when you feel that you have paid me the $20,000, tell me and that will be the end of it.'

But on that basis, they would keep paying you beyond the date of April 06 and you would keep receiving money?---Up to April 06, they have only paid most probably between five and six thousand dollars. I paid for the full loan originally, but they only repaid me between five and six thousand dollars (ts 436 438).

185 Mr Howard was a former crayfisherman who worked with Dan at Ledge Point before suffering a serious back injury about 20 years ago. He did not pay rent while living at the property (ts 267). But he assisted Dan with activities on Lot 387 to the extent his disability permitted.

186 For a period Mr Howard also ran some of his own cattle on Lot 387 (with Dan's permission (not Adaria's)). Mr Howard was asked during his examinationinchief by counsel for the plaintiffs:

During the time that you were on the Boddington property did you have any conversations with Adaria Chinnery?---Yes, on many occasions.

Are you able to tell the court what happened in those conversations, what was said?---Well, in most conversations right from the beginning Adaria had turned around and said that the property was for Danny and the kids. Her words - I can't be exact but - were it was his early inheritance 'and I would like to see him do something with it while I'm still alive.'

You said that was early on. That would have been 1993-94, would it?---Yes, yes, and from then on over the 10 years it came up on many occasions...

And Adaria visited at that time?---Yes, definitely.

You spoke to her during that time?---Yes, every time Adaria came down I spoke to her (ts 264).

187 Mr Howard's evidence was vague. He could not recall or relate the specific words of any particular conversation with Adaria regarding Dan's 'inheritance'. Mr Howard's evidence was also extremely brief. He had resided at Lot 387 in a van or bus for some 10 years. At (ts 267) evidence was elicited that Adaria had visited the property on many occasions from 1994, especially after the erection of the 'bomb shelter/underground shelter'. This question was asked:

During these conversations the subject was always the same in regard to who the property was for?---Yes it was Danny's early inheritance and she wanted to see him do something with it while she was still alive.

188 The rolled up response was broadly in line with what I previously related as Mr Howard's evidence (ts 267). Like the plaintiffs, Mr Howard was unable to recount the specifics of any conversation when the phrase early inheritance was used. His evidence was confined to the same generality provided by both Dan and Dana.

189 During crossexamination it was put to Mr Howard that the conversations he said he held with Adaria, did not take place. Mr Howard said they had (ts 269) but no greater details or contexts emerged.

190 Mr Howard's evidence overall was very general and nonspecific as to when such conversations with Adaria had occurred. No surrounding context for the conversations with Adaria was given. The alleged statements about 'Danny's early inheritance' that are said to have occurred with Adaria were delivered in evidenceinchief by Mr Howard as something of a bolt out of the blue. They were inherently general and were not really capable of being tested by being given an accompanying context of the occasion or accompanying context of a particular conversation that could be put to Adaria in crossexamination.

191 Adaria firmly denies these conversations with Mr Howard. She says she did not and would not have had personal conversations of this kind concerning Dan with Mr Howard. I accept Adaria's evidence on this point. I find it is most unlikely, having seen Adaria as a witness, that she would have casually opened up her thoughts about Dan to an outsider to the family (as she would see him) like Mr Howard.

192 There was also no evidence from Mr Howard that he ever related what he said had passed in conversations between himself and Adaria to Dan. Perhaps his evidence was led from a perspective of that implication being made. If it was, I am not prepared to draw the implication because of the vagueness and overall lack of content and context in Mr Howard's evidence on this issue.

193 Furthermore there is, I think, a problem in the tainting of evidence from Dan, Dana and Mr Howard that requires me to treat everything they say that is contentious (with the statements concerning the 'early inheritance' for Dan being perhaps the most contentious evidence in the trial) with considerable caution. The problem arises out of joint proofing sessions conducted by solicitors acting for the plaintiffs in circumstances I will relate next.

194 In summary then, there is an inherent residual vagueness surrounding Mr Howard's evidence about his alleged conversations with Adaria about Dan. The evidence is also wholly verbal, strongly denied and uncorroborated. I do not accept it.

195 Apart from vagueness, lack of corroboration and tainting problems, there is also a problem arising by reason of the somewhat emotive familial nature of the relationships and alignments that exist between these parties. There exists a firm and longstanding friendship between Dan, Dana and Mr Howard. He sits firmly in their camp.

The tainting of the evidence of Dan, Dana and Mr Howard

196 A potential contamination problem emerged during the crossexamination of the plaintiffs and Mr Howard. First, there had been collaboration by Dan and Dana in the preparation of a joint affidavit and then a joint witness statement. Second, Mr Howard had participated in some meetings with Dan, Dana and the plaintiffs' solicitors leading up to preparation of his witness statement.

197 First, I refer to Dan's crossexamination (ts 136 139):

It's fair to say, isn't it, that there's been a bit of a joint effort on the part of both of you since you first went to see the solicitors back in 07?---Well, we've been together for 26 years, yes.

To the extent that you both swore the same affidavit; do you recall that?---Yes, yes, we did.

Then you both signed the one witness statement. That was after the affidavit?---Yes, I think we did. I think we did. There's been a lot of toing and froing, but I think, yes, we did sign the one witness statement, yes.

When you say toing and froing, were you both present together when the affidavit was being prepared, the joint affidavit?---Yes.

You were both together when the joint witness statement was being prepared?---When you say present when it was being prepared, were we in the - do you mean being in the office in Mandurah or

I apologise. Let me clarify. Your solicitors were Clement and Co of Mandurah. Yes?---That's correct.

So you went to see them for advice?---Yes.

They met with you to prepare firstly the affidavit?---Yes.

The course of that preparation involved a solicitor sitting down with both you and Dana at the same time and asking you both questions at the same time?---Yes. I also prepared a long written statement that I gave them that some of the affidavit material came from as well.

After that joint affidavit, there was the joint witness statement, you told us earlier?---Yes.

That was prepared in the same fashion, you and Dana together with the solicitor?---Yes.

At all times, both of you together with the solicitor?

---Yes.

In fact, it's a fair summary to say that for these proceedings this week, you and Dana have separate witness statements, but they are pretty much in the same terms, aren't they?---Yes.

And you've read over her witness statement a number of times?---I've read it over. I've read Dana's once and skimmed through it a couple of times.

So you know then it's almost identical to yours, don't you?---Yes.

And similarly she has read your witness statement?---No, Dana hasn't read mine, not comprehensively. She's had a look at bits.

To your knowledge?---Yes, to my knowledge.

But she was present with you at all times when it was being prepared?---She knows the substance of it, yes.

But she was present with you and the solicitor when her witness statement was being prepared. Yes?---Yes.

You spent a lot of time with your solicitors back from 07, I think, when the caveat was lodged. Am I right in that?

---Yes, 07.

07, so we're now in 011 so it's four years, isn't it?

---Yes.

Or nearly?---It's been over four years since all of this started, but yes.

Your solicitors no doubt explained to you that it's a very serious business to lodge a caveat, didn't they?---Yes.

And that in fact you had to be careful to make sure that what you said in any affidavit was accurate. Yes?---They said to tell the truth and nothing but.

And no doubt they said the same thing about the witness statements?---They said, 'Whatever you do, just tell the truth and nothing but,' and when I've been seeing my witnesses, the people we've got as witnesses, I've stressed that to them as well.

Tell me about that a bit more. Who have you been seeing and when and what have you said to them?---I saw Russell and I got him to - I told him what the situation was.

When you say you told him what the situation was, what do you mean?---That Adaria had reneged on her original agreement, and I said, 'Look, we'll be needing you as a witness.' I said, 'Can you write down your story?' I said, 'But when you write down your story take your time, make sure that whatever you say you can stand by because you'll be called up in court to be questioned on it.'

Did he discuss his recollections with you?---On several occasions; on other occasions, no, he just wrote down what he thought. I found it to be imperative not to influence because I don't want people to end up sitting where I am here not feeling a hundred per cent sure of what they're saying.

198 During cross-examination, Mr Howard described the process by which his witness statement was taken in the following terms (ts 267):

HOLLER, MR: Dan told us he contacted you to see if you could give a statement. Do you remember that?---Sorry?

Dan told us that he contacted you to see if you could give a statement for this court case?---Yes, yes.

Do you recall when that happened?---No, I can't exactly.

Do you recall what he said to you?---He just needed an affidavit from me for court, and then it went to witness statement and so on.

How was this witness statement, a written witness statement that you signed - you did sign one. You remember that, don't you?---Yes.

How was that prepared? Can you describe that? How did that process evolve? You said it went from affidavit to witness statement. What was that all about?---I'm not sure exactly. The courts changed it from affidavits to witness ...?

199 Bearing in mind that Dan and Dana have lived together as common law husband and wife for at least 25 years in a relationship that has produced three children, it is hardly surprising they would have discussed the underlying family circumstances giving rise to this litigation over time. Having said that, some better effort should have been made when they were being proofed by their solicitors, particularly when they came to prepare witness statements, to separate their evidence, to ensure each was relating only independently admissible evidence. Preparation of a joint witness statement should not have occurred. However, the fault would seem to rest with their legal advisers rather than with Dan and Dana personally. The position is unsatisfactory in a case where the reliability and terms of alleged oral statements made long ago are at issue. Problems would have been worse had Dan and Dana given evidence at trial by their eventually separated but still closely parallel prepared witness statements. In the end this problem was avoided by happenstance, as a result of the overriding deficiencies in the witness statements.

200 The main problem undermining the reliability of Dan and Dana's evidence at trial lies in its inherent vagueness. The tainting issue is a concern, but is of lesser moment.

201 In the end, Mr Howard's brief and vague evidence was also of such small moment in the trial that the failure to isolate him from the potentially tainting influences of Dan and Dana during the taking and preparation of his evidence does not effect the result.

202 I repeat pars 31 34 from the statement of agreed facts as regards the kit home, together with the matters identified in the agreed chronology indicating that a personal loan was taken out by Adaria in June 2000, secured by a mortgage over her residence at Modillion Avenue, Shelley. By March 2004, Adaria repaid this $75,000 loan to the ANZ Bank. In the process she also paid $27,785 interest.

203 The first issue arising is whether or not there was any commitment by Dan and Dana to reimburse Adaria this $75,000 or for any part of those funds or the interest on the loan. Adaria denies there was any such agreement or arrangement. Dan and Dana contend to the contrary.

204 It will be recalled that the substituted statement of claim of 14 September 2009 contends for what appears to be a distinct oral agreement in the year 2000 (see pars 44 52). The intended significance of this second oral agreement in 2000 between Dan, Dana and Adaria is not clear. As pleaded the alleged oral agreement presents as something attempted to be grafted to the earlier 1992 Agreement. Of course that 1992 Agreement is no longer pressed as a contract. My conclusion is that the blue Volvo conversation or some later affirmative assurance or promise by Adaria to Dan about an early inheritance did not take place. That base conclusion removes the cornerstone upon which following events in 2000 would seem to have relevance. Nevertheless, because they occupied a large component of the trial, I proceed to evaluate the year 2000 and following events as a possible alternative basis to support Dan and Dana's proprietary estoppel case.

205 Paragraphs 48 and 49 of the statement of claim contend:

1. From the year 2000 the plaintiffs have paid off the kit home loan at a rate of $1,200 per month to the first defendant.
2. The payment of $1,200 per month to the first defendant has caused the plaintiffs considerable hardship and necessitated both of them obtaining additional employment.

(d) Since the delivery of the kit home, the plaintiffs have paid to the first defendant $300 per week ($150 of consistent income paid directly by the Department of Transport to the first defendant for the bus run and an additional $150 in cash);

(e) The first defendant constantly reassured the plaintiffs that she had applied each of the $300 per week payments to meet the interest on and reduce the amount owing on the kit home loan.

1. Subsequently the plaintiffs have learned that the kit home loan was fully repaid by March 2004.
2. The first defendant did not inform the plaintiffs who continued to pay $1,200 per month in repayments of the kit home loan to the first defendant up until March 2006.

208 Some confusion by the plaintiffs in the loan nomenclature used arises at this point. First, there is no doubt Adaria borrowed $75,000 in June 2000 from the ANZ Bank. She incurred that liability personally. Then, she had repaid this loan personally with interest by March 2004. Adaria's loan to the ANZ Bank taken out to purchase the kit home in 2000 was never a legal responsibility of Dan and Dana.

209 However, a wholly distinct issue arises over whether there was some correlative agreement, arrangement or understanding between Adaria, Dan and Dana, under which Dan and Dana were to reimburse Adaria the $75,000 with interest. This loan repayment to Adaria is said to have been achieved through Adaria's ongoing receipt of bus run money from mid2000, with these funds now being directly paid into Adaria's bank account. The bus run money is alleged to have been supplemented by regular payments of cash said to have been handed to Adaria by Dana.

210 In my assessment there was no agreement between Dan, Dana and Adaria to repay the $75,000. Dana produces no documentation supporting the claim she rendered regular cash payments to Adaria. At trial Dan and Dana did not or could not produce their own bank statements to prove drawings of amounts from their accounts that might have been explicable as cash that found its way from them to Adaria.

211 Adaria accepts that from time to time after March 2004 she did receive about $6,000 in irregular cash payments given to her by Dana. But Adaria does not attribute these payments to the repaying of the money she outlaid for the acquisition or fitting out of the kit home. Adaria says cash from Dana related to repayments made against the 2004 loan of $20,000 that she advanced on Dan and Dana's behalf.

212 Assuming roughly $6,000 in cash receipts that is accepted by Adaria, adding to the bus run receipts of $6,000 per annum for the years 2001, 2002, 2003, 2004, 2005 and 2006 (plus $3,000 for half of the 2000 school year) would generate payments of approximately $45,000 until October 2006, when the bus run ceased. That is the maximum benefit Adaria would have received in that period.

213 On Dan and Dana's case, they say they borrowed $95,000 from Adaria - being $75,000 in 2000 to purchase the kit home and the $20,000 in 2004 to pay for the fit out of the kit home. But as Adaria has kept all the financial records Dan and Dana say they cannot know how much they owe Adaria, taking account of greater cash payments Dana made for which there is no receipt. I do not accept those contentions.

214 There is a terminal lack of supporting financial documentation to sustain Dan and Dana's contention that they made cash payments to Adaria beyond the $6,000 that Adaria accepts she received after March 2004 against the $20,000 she outlaid to the benefit of Dan and Dana at their request.

215 No further cash sum save the $6,000 can be accepted as having been proved, on the balance of probabilities. Cash aside, I also find Adaria received no more than $39,000 from the bus run contract in the period from mid2000 to October 2006.

216 On 13 October 2006, after a family altercation I will relate, Dana went to her National Australia Bank branch at Boddington. There she filled out a direct debit form authorising fortnightly payments of $600 to Adaria (see exhibit 1, vol 3, page 846). On the form completed on 13 October 2006 there is a marked square box, indicating the authority for the fortnightly payment. The subject matter is rent.

217 Dana's evidence about this incident contended that it was the NAB bank officer, not she, who had erroneously filled out the form indicating rent and that she did not notice at the time. Dana said that her instruction to the bank teller when she went to the bank and filled out the form was that the payment was not a rental payment.

218 According to Dana, she filled out the form for a regular direct debit payment in an attempt to placate Adaria. In setting up a direct debit arrangement, Dana was providing a regular income stream that Adaria had lost when the Department of Education had terminated the bus run in October 2006.

219 Dana characterised the direct debit as a resumption of the repayment arrangements by Dan and Dana against their aggregate indebtedness to Adaria for the $95,000 plus interest. I do not accept the evidence from Dana about the bank form not being correctly filled out. It is inconsistent with the clear marking on the face of the form (see exhibit 1, vol 3, page 846). Dana's convenient explanation presents to me as a contrived attempt to rationalise an inconvenient document. Further, Dana's evidence is inconsistent with her statutory declaration of 9 July 2007 (exhibit 4). This evidence is important and will be considered in more detail later in these reasons. As I have said, absent independent reliable corroboration, I do not accept Dana's evidence where it is contradicted in areas of controversy in the trial.

220 Furthermore, I have given attention to exhibit 7, a witness statement of Robyn Beverley Pankiw tendered by Adaria as part of her case in circumstances where Ms Pankiw was not required for crossexamination. Much of the statement concerns matters that Ms Pankiw says she was told by Adaria.

221 I find most of the content of the statement of Ms Pankiw to be selfserving. I do not place reliance upon what Ms Pankiw says about what she was not told on various subject matters by Adaria 'over the years'. I can give this statement no evidentiary weight in the overall mix. The statement is unhelpful.

222 Adaria's supplementary statement (exhibit 8C) elaborates on the kit home acquisition and the time it took for the kit home to be assembled by Dan between 2000 and 2006. At par 13 Adaria explains that she borrowed $75,000. The kit home was acquired by her from Fineline Homes Pty Ltd then run by her brother, the late Greg Lewkowski. Although the price for a kit home fully assembled was $75,000, Adaria was able to acquire the kit home components for $50,000. She says, 'I was approaching retirement age and when my brother offered me a kit home "at cost", I decided to borrow $75,000 to have a kit home built on the property'.

223 The original arrangements related by Adaria whose evidence I accept, is that her nephew, Warren Lewkowski, would erect the kit home for $25,000, i.e. $75,000 to be paid by Adaria all up to purchase the kit home and have it assembled by her nephew. However, the assembly arrangements changed after a discussion by Adaria with Dan. Adaria says the change was on the basis that Dan would do the kit home assembly work thereby saving Adaria $25,000. Adaria said Dan (par 13) 'would not allow Warren into the kit home and on to the property'.

224 Adaria says that she had a conversation with Dan who 'asked me if I paid off their debts he would provide the labour to complete the kit home' (par 12 of Adaria's supplementary witness statement, exhibit 8C). Effectively, Adaria says that in mid2000 she outlaid $25,000 to meet Dan and Dana's debts at the time and thereby used the $25,000 out of her $75,000 she borrowed to that end.

225 Adaria says the $25,000 was applied to the extent of $14,716.03 towards labour, tiles, electrical work, an electric stove, a slow combustion wood heater, bricks, a building permit and a water pump (see par 114 of her witness statement) for the kit home. That is supported by receipts for most of those items in the trial bundle. I accept this evidence.

226 Controversially, Adaria says she outlaid $10,725 towards paying off debts of Dan and Dana. She deals with this in pars 112 and 113 of her witness statement. She explained:

They said to me that they would finish the construction of the kit home if I paid:

(a) $5,000 to Ray Cowan (Dana's father) to repay a loan they had taken;

(b) $4,500 to Alan Clifton (Dan's father and Adaria's first husband) to repay a loan they had taken; and

(c) $1,225 to Michael Littley for some fruit trees.

227 Again, there is no controversy about the $1,225 paid to Mr Littley (see exhibit 1, vol 1, page 43 and vol 2, page 367). There is, however, controversy over asserted payments to Dana's father and to Dan's father.

228 Dana said the payment of $5,000 to her father was actually referable to Adaria's acquisition from him of a Hyundai Excel, in June 2000. Dana ascribes the $4,500 payment on 5 October 2000, as being a payment to Solahart (see ts 257 258) and not to Dan's father, Alan Clifton. On this point the evidence is not clear enough, either way.

229 On Dana's version, kit home arrangements with Adaria emerged after Dana went to the local bank to see if she and Dan could get a loan to buy a kit home for Lot 387 for herself and Dan. Dana was told at the bank (ts 208) that the bank would need the titles for the property. Dana said, 'They wouldn't loan me the money to build a house on someone else's - when the property was in the name of someone else's name, which I told Adaria'.

230 Dana relates that Adaria's response to her on the issue of obtaining the titles to Lot 387 was:

She wasn't took [sic] keen on, you know, giving the titles over and she goes, 'Well, I can get a loan because it's easier that way and you can pay me.' So that's how it started (ts 208).

231 Dana says she asked Adaria for the title to Lot 387 at this time (although this is disputed by Adaria). Dana's evidence was (ts 208):

Did you ask her for the titles at that point in time?---I did ask her. I said, 'Well, the only way we can do it, Adaria is by getting the titles,' and she goes 'Well, no.' I said, 'Well, we feel uncomfortable out there,' and she goes, 'Well, I can get a loan to do it and you can pay me back,' and I said, 'Fine,' because we're a family anyway. I didn't think it was going to be a drama. I would just pay Adaria.

232 There is an email exchange in exhibit 1, vol 3, page 879 between Adaria and Dana across the period 23 26 April 2007. As the exchange makes clear, the relationship between Adaria and Dan appears to have been significantly undermined by an argument between them in October 2006. It is necessary, by reference to the evidence of Dan and Adaria, to explore that pivotal incident which I find bears heavily upon the deterioration in the family relationship from that point. I do so in the context of summarising events between 2000 and 2007.

233 Around late 2006 Adaria visited Lot 387 at weekends more frequently. She was working on refurbishing the shed which had now become vacant with the family's move to the kit home. Adaria planned to let the shed out for rental to tenants. The bus run had ceased in October 2006. Adaria's work in terms of refurbishing the shed appears to have irritated Dan.

234 In her witness statement (exhibit 8A) Adaria details the work she did renovating the shed between April and October 2006, after Dan and his family moved into the kit home. She says she drove from Perth to Boddington every Sunday to clean the shed to make it more suitable for renting to third party tenants. Adaria says that she chose Sundays to drive down and do this work to avoid confrontation with Dan (see pars 136 147 of Adaria's witness statement).

235 In October 2006 there was the incident Dan described as an altercation. The incident weighed very heavily on Adaria. On her evidence, as a result of the incident she now for the first time laid down a requirement to Dana in express terms that Dan and Dana must pay rent as the basis of their continued occupancy of Lot 387.

236 Between pars 148 and 163 of her witness statement, Adaria related the circumstances of the altercation. In crossexamination, the circumstances of the incident were put to Dan. There appears to be no dispute that there was a serious confrontation between Dan and his mother at Lot 387 at this time.

237 Dan acknowledges shouting at his mother, the culmination of which was telling her to 'fuck off the property'. Adaria was hurt and very distressed by Dan's shouting and harsh words. There is a dispute about whether Dan was also then waving a document at his mother telling her to sign over the property to he and Dana. Adaria relates this evidence at pars 150 and 151 of her witness statement. Dan did not appear to accept this. I accept Adaria's version of what occurred.

238 According to Adaria, as she drove off the property to return to Perth that day, she said to Dan and to Dana, who came to the window of her car as she was driving off, 'You have told me to fuck off, now I want you to leave, move off this property'.

239 Adaria then drove to a petrol station on Albany Highway, approximately 24 km from Lot 387. She was followed by Dan in his vehicle. Dan tried to apologise. According to Adaria he was still waving the document and asking her to sign it. Adaria says that she told Dan she was suffering heart palpitations and needed to get home and lie down. For a time Dan appears to have stopped Adaria driving off from the petrol station by sitting either in front of or behind her car.

240 Dan rather reluctantly and very uncomfortably I thought related the incident under crossexamination (ts 187 188). Although Dan attempted to apologise, the incident appears to have thoroughly undermined the previously cordial relationship between Dan and his mother.

241 Adaria says that she returned to Lot 387 a week later. She had a conversation with Dana whilst she was again working at the shed (exhibit 8A, pars 155 156). There was another conversation with Dana several days later. The content of these conversations with Dana about the direct debit payment and rent have been discussed earlier in these reasons. However, as they give context to the altercation, they are worth repeating. Adaria, in response to Dana's request to allow the family to remain on Lot 387, told Dana that she would agree to permit the family to stay, but on condition they regularly paid her $300 per week. She told Dana that money was to be half in relation to repayment of the 2004 loan of $20,000 and half as rent. According to Adaria's witness statement (exhibit 8A) she said to Dana:

1. I said that the area of the shed, the water tank and the cellar would be my area and out of bounds for them.
2. I told Dana that if they paid me $150 per week for one year in relation to the $20,000 loan then I would call it quits and consider the loan paid in full. This did not apply to rent. They would still have to pay rent.
3. That afternoon Dana went to a National Australia Bank branch and organised a direct debit of $600 per fortnight from her bank account to mine. She returned to the property with a periodical payment form which she showed me.
4. Dana drew my attention to where she had checked the box marked rental and said I have done it now.
5. Dana's payments of $600 per fortnight continued from October 2006 until April 2007 and then stopped. I have not received any money from her or Dan since then.

242 Adaria's plans to rent out the shed went ahead. First, she let it to a Mr Geoff Richardson and his partner (who paid $150 a week rent) who 'stayed for a few months and left' (exhibit 8A, par 164).

243 The shed was then rented out to a Mr Ray Hay at $160 per week under another arrangement with Adaria that lasted approximately a year between March 2007 and 2008. The shed has not been rented out since (exhibit 8A, par 165).

244 A series of emails passed between Adaria and Dana across 23 April 2007 (see exhibit 1, vol 3, pages 880 and 879). This exchange appears to have been the precursor to the caveat which Dana eventually lodged.

245 The email exchange focused direct attention upon whether or not Dana and Dan had been paying rent and whether they were making loan repayments. Adaria's email (exhibit 1, vol 3, page 879) made it clear to Dana that payments of $1,200 per month were for loan repayments on the $20,000 loan, as well as for weekly rent. Adaria told Dana that she was going to engage a local real estate agent to formalise rental arrangements with Dan and Dana.

246 Adaria related her efforts to have a Ms Carrotts, of Landmark Real Estate in Boddington, secure the signatures of Dan and Dana to a written rental agreement. This was unsuccessful. Dan would not sign (exhibit 8A, pars 172 and 173). According to Adaria, the first time that she directly asked Dan or Dana to pay rent was in 2006, following the altercation with Dan (exhibit 8A, par 204).

247 In July 2007 Adaria received the notice from Landgate advising that a caveat had been lodged on Lot 387 (exhibit 1, vol 3, page 882).

248 Dana related her lesser knowledge about the October 2006 altercation in her crossexamination (ts 259 263). She also related a subsequent discussion in the shed with Adaria (ts 261). Dana denied most of what was put to her in crossexamination about these conversations with Adaria, particularly the shed conversation. She did not recall Adaria saying to her that the family could stay but now would need to pay $300 per week, half in relation to the $20,000 loan and half in relation to rent. I do not accept Dana's evidence, which I found unconvincing.

249 I prefer Adaria's evidence in relation to the altercation and its aftermath, particularly Adaria's express requirement for rent to be paid and for some better regime of repayment of the $20,000 she had applied to Dan and Dana's benefit in 2004. Such a finding is consistent with the National Australia Bank direct debit form that Dana procured in October 2006, which shows the rental box marked as the purpose of the instruction to Dan and Dana's bank. As I have said, I do not accept the evidence about that marking as being the unilateral work of the bank clerk made without reference to Dana.

250 In the circumstances then, there presents a situation in which an unfortunate incident in October 2006 altered the casual relationship of goodwill that had existed from 1993 between Adaria and Dan's family. Rent was now required. But Dan would not agree to formalise this requirement by signing a rental agreement. Furthermore, Adaria insisted on renting out the shed on Lot 387 to tenants who would pay rent. That was a source of ongoing tension. The shed was occupied by tenants until 2008.

251 I find that Adaria was deeply offended by harsh and profane words shouted at her by Dan in October 2006. In my assessment, she had every right to be upset. She was only mildly crossexamined about the October 2006 altercation (ts 452). In response to a question about whether there was a disagreement over rent before the altercation, Adaria said:

No. The disagreement occurred before I asked for this rent. Asking for that rent was as the result of Danny ordering me off the property and insulting me.

252 Of the key witnesses, I was far more satisfied with the evidence of Adaria. She was extensively crossexamined. In the main, whilst Adaria was at times defensive to questioning, I thought she presented as a far more reliable witness than either Dan or Dana. It was obvious she has a sophisticated grasp of business concepts. But, like Dan and Dana, she also presented as being deeply affected by the falling out which had occurred between herself and Dan, leading to their present estrangement from his family. Accordingly, I have also been cautious in regard to an unguarded acceptance of Adaria's evidence in the key disputed areas.

253 Unlike Dan and Dana, Adaria was usually able to produce documentation of a financial nature to support her position. However, it is Dan and Dana, not Adaria, who carry the onus of proof to make good their contention of a proprietary estoppel to show an 'interest' in Lot 387. They need to show on the part of Adaria some promissory statement, representation, assurance or conduct in way of an encouragement in order to ground the estoppel. It is at this most fundamental, evidentiary level that the case sought to be made good by Dan and Dana fails. They simply do not show, on my assessment, that the 1992 blue Volvo conversation between Dan and his mother took place, a conversation Adaria firmly denies. Nor has a conversation in which Adaria promises Dan an early inheritance as regards Lot 387 or 20 Moness Street been proven.

254 A significant slide by Dan and Dana in relation to the core facts advanced to support their case is against an acceptance of their credibility. I have already referred to a factual change which emerged only on day one of the trial (not yet corrected by amendment) by departing from the pleaded case that the $120,000 purchase price for Lot 387 was to be repaid by Dan and Dana to Adaria.

255 An illustrative example of this shift is the statutory declaration sworn by Dana in July 2007, shortly before proceedings were commenced. Her statutory declaration was sworn to support the caveat lodged against Lot 387 by Dan and Dana. The brief content of Dana's statutory declaration was:

1. I make this declaration of behalf of myself and DANIEL GORDON CLIFTON ('Daniel') of PO Box 165, Boddington in the State of Western Australia, Driller.
2. During 1993 or 1994 Daniel and I entered into a verbal agreement with ADARIA MARIA CHINNERY ('the Registered Proprietor') of Lot 387 on Deposited Plan 255828 ('the Land') in terms of which it was agreed that:

1. We have the right to occupy the land for the rest of our lives or until we inherit the Land in terms of her will 2. We would effect certain capital improvements to the Land

1. The Registered Proprietor will register a mortgage over the Land in favour of a financial institution and that we will perform the terms of the mortgage agreement.
2. We have effected certain capital improvements to the Land.
3. The Registered Proprietor purported to have registered a mortgage over the Land.
4. We have made regular payments to the Registered Proprietor in terms of the purported mortgage.
5. We claim an equitable interest in the Land as beneficiaries of the trust whereby the Registered Proprietor holds the Land for herself and ourselves as tenants in common in undetermined undivided shares.

256 Dana's statutory declaration, made before any statements of claim were filed, is starkly inconsistent with the case run at trial. It mentions a lifetime right of occupancy of Lot 387. It canvasses in the disjunctive an alternative, 'we inherit the Land in terms of her will'. That formulation is impossible to reconcile with the concept of an 'early inheritance'. If an interest in Lot 387 is to pass under Adaria's will, what would be early about such an arrangement? The reference to Dan and Dana's performance of 'terms of the mortgage agreement' is obviously wrong based on the trial evidence. Finally, it is declared that Dan and Dana made regular payments to the registered proprietor in terms of the 'purported mortgage'. This simply did not happen, unless a receipt of Adaria of the bus run payments after mid 2000 are relied upon. I fail to see how circumstances surrounding an agreement that Dana was prepared to swear to have changed so greatly between July 2007 and the trial. The statements by Dana in her statutory declaration are so seriously at odds with the case run at trial that they cast a pall over the credibility of anything that is not independently verified.

257 On Dan and Dana's best case they owe Adaria money. They contend they have two debts to Adaria incurred in 2000 and 2004 amounting to $95,000. They also contend they should reimburse her for the interest she has paid her financial institution on both loans (Adaria having in fact paid them both back). Against the two debts they then say:

(a) Adaria received cash from Dana. But on the evidence this could not exceed approximately $6,000 Adaria received after March 2004;

(b) Adaria received bus run money from mid2000 until October 2006 when the bus run was ended. At best this would amount to $39,000; and

(c) $600 per month remitted from Dana's bank across six months (October 2006 to March 2007) = $3,600.

258 On that basis, Adaria is said to have received only approximately $48,600 from Dan and Dana. That sum is to be applied against Dan and Dana's selfassessed indebtedness of $95,000, plus interest being attributed to the loan funds.

259 Dan and Dana made no further remittances or payments to Adaria since the first quarter of 2007 and have been in and remain in occupation of Lot 387 since. Yet Dan appears to have been engaged in increasingly remunerative employment in the mining industry as a driller since 2000.

260 In written closing submissions, a strong attack was launched against Adaria's credibility by reference to aspects of her crossexamination. However, a focus on seeking to discredit Adaria, apart from failing, was tactically misplaced. Even had I not accepted any of Adaria's evidence (that being by no means my position), manifest deficiencies in the evidence of Dan and Dana present as terminal.

261 Another significant feature in the case is that there is an absence of any documentation produced at trial such as bank statements, cheque stubs or the like to support a contention that Dana made cash payments to Adaria. Dan and Dana carry an onus to establish Adaria's receipt of cash which save for funds received post 2004 to the approximate extent of $6,000 is otherwise denied.

262 I do not find, on the evidence adduced at trial, that Dan and Dana have established that there was a blue Volvo conversation between Dan and Adaria concerning the Moness Street property. Nor do I find an implicit assumption that proceeds of the sale of Adaria's Moness Street property were to be Dan's in their application towards the purchase of Lot 387 at Boddington.

263 The case argued by Dan and Dana at trial is fundamentally irreconcilable with the statutory declaration which Dana swore in July 2007. The move at trial away from reliance upon an enforceable oral agreement or a failed joint endeavour constructive trust is one thing. Ordinarily, the abandonment of marginal causes of action at trial would be encouraged. But the difficulty here is that the remaining cause of action was conceived with the idea of the enforceable contractual agreement that is no longer advanced, as well as upon key facts which plainly are not even pursued (i.e. facts concerning repayment of the purchase price for Lot 387 by Dan and Dana to Adaria). Those structural deficiencies subsist to infect and undermine the remaining cause of action grounded upon proprietary estoppel.

264 Dan and Dana were essentially close to destitute in 1993, both being unemployed with two young children to support. The move to Boddington, where they would not immediately need to pay rent to Adaria, was a welcome alleviation of the financial circumstances of the family. From Adaria's perspective, her acceptance of the family's presence on Lot 387 was an act of kindness by a mother to her son and his family. However, the kindness was not perpetual in duration. Nor could it or should it reasonably have been expected to be timeless. This was a family situation after all.

265 From 1994, Dan and Dana settled down and made a reasonably comfortable rural existence for themselves and their family on Lot 387 in the refurbished shed. The bus run contract work was a convenient, but relatively painless way of earning some income. Things started to change from mid2000 at the time of the delivery of a kit home to Lot 387. Dan was also now able to secure some more reliable work and remunerative income from drilling work in the mining industry.

266 Between mid2000 and the end of 2006, the bus run income of $6,000 per year was received by Adaria. I find that whatever ends Dan and Dana may have believed they were achieving or furthering through Adaria's receipt of bus run funds was not discussed. The situation presents as a rather informal family situation where parties are happy to assist each other and for a status quo to continue, until disrupted. The bus run income was some form of recompense to Adaria in return for Dan and his family's occupation on Lot 387 from 1993 to 2006.

267 Dan and Dana may have hoped that in the future Adaria would make some gift to Dan of Lot 387, given her longstanding support of the family. But that was not to be. The altercation poisoned the well. The issue of rent was never affirmatively discussed between Dan, Dana and Adaria until after harsh words shouted at Adaria by Dan in their altercation of 2006.

268 Until late 2006, Dan and Dana and the family had received the clear benefit of residing on Lot 387. Otherwise, they would certainly have had to pay rent for another residence or, if they purchased a property, to pay off a mortgage. The bus run income flowing to Adaria from 2000 2006 was a relatively modest return. I assess nothing unconscientious about Adaria's receipt of the bus run funds in that period.

269 The situation regarding bus run income received by Adaria may be best assessed as an incident of poor communication arising out of the continuance of a status quo, rather than embodying any misrepresentation by words or conduct from Adaria to Dan or Dana.

270 Dan and Dana may have had hopes based upon Adaria's generosity to them and to their family since 1993. That generosity was in my assessment significant. But the hopes of Dan and Dana were not engendered in my assessment by Adaria's conduct to them from the perspective of the application of principles of proprietary estoppel by reason of statements, assurances, encouragements or representations on her part. Any hopes, beliefs or expectations they held were of their own making. They may even have been realised had it not been for Dan's injudicious expulsion of his mother from Lot 387. This conduct very unwisely killed the goose that to that point had laid the golden eggs for the family.

271 Overall, I detect no underlying unconscientious conduct from Adaria towards Dan and his family. To the contrary, I only ascertain the overwhelming but largely unappreciated generosity of a mother to a son and his family.

272 My conclusions are fatal to the plaintiffs' proprietary estoppel case. I find for the defendant. I will order that Dan and Dana deliver up vacant possession of Lot 387 to Adaria and that caveat K264237 be removed.