EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE –
RELEVANT CONSIDERATIONS AND DEFENCE MATTERS – ACTS INCONSISTENT
WITH
CONTINUANCE OF CONTRACT – BREACH OF CONTRACT – where the plaintiff
Source
Original judgment source is linked above.
Catchwords
EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE –RELEVANT CONSIDERATIONS AND DEFENCE MATTERS – ACTS INCONSISTENTWITHCONTINUANCE OF CONTRACT – BREACH OF CONTRACT – where the plaintiffand defendants entered into a settlement agreementconcerning the disposition ofland – where the settlement agreement provided for a transfer of a halfshare to plaintiff astenant in common in equal shares – whether theplaintiff’s breach by failing to pay rates and charges associated withtheproperty under the agreement was a breach of an essential obligation –where specific performance is not precluded by theplaintiff’s breach, anddamages are an inadequate remedyEQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE –GENERALLY – where the defendants made substantial improvementsto theproperty which increased its value – whether an order for specificperformance should accommodate the current value
of the property
EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS –
CONSTRUCTIVE TRUSTS – BREACH OF FIDUCIARY OBLIGATIONS –
whether the
first defendant held the property on trust and whether defendants breached the
trust by executing mortgages – whether
the first defendant held the
property on trust for the plaintiff and itself
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR
PARTITION – GENERALLY – where s 38(1) of the Property Law Act
1974 (Qld) provides that the Court may appoint trustees for sale of the
property – whether upon sale, the amount the plaintiff can
receive from
the proceeds should be limited
ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF
ACTION ESTOPPEL – GENERALLY – where the plaintiff
previously
instituted proceedings against the defendants – where the previous
proceeding was dismissed for failure to comply
with a self-executing order
– whether a self-executing order was a determination on the merits of the
previous proceeding
ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL –
GENERALLY – whether claims made in the current proceeding
could have been
made in the previous proceeding – where the plaintiff became aware of
facts after engaging with new legal representation
– whether the claims
are precluded by Anshun estoppel
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND
GENERALLY – INHERENT AND GENERAL STATUTORY POWERS –
TO PREVENT ABUSE
OF PROCESS – ATTEMPTS TO RELITIGATE – where the plaintiff previously
instituted proceedings against
the defendants – where the previous
proceeding was dismissed for failure to comply with a self-executing order
– whether
the current proceeding is an abuse of process – whether
permitting the current proceeding to continue to a determination on
the merits
is unjustifiably oppressive
Land Title Act 1994 (Qld)
Property Law Act 1974 (Qld), s 37, s 38
Chang v Registrar of
Titles [1976] HCA 1
(1976) 137 CLR 177
Chartbrook v Persimmon Homes Ltd [2009] UKHL 38
[2009]
AC 1101
Codelfa Construction Pty Ltd v State Rail Authority of NSW
(1982) 149 CLR 337
Commissioner of State Revenue (WA) v Rojoda Pty Ltd
[2020] HCA 7
(2020) 268 CLR 281
Commonwealth Director of Public Prosecutions v
Citigroup Global Markets Australia Pty Limited (No 3 – Privilege
Claims) [2021] FCA 1208
Dougan v Ley [1946] HCA 3
(1946) 71 CLR 142
DTR
Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12
(1978) 138 CLR 423
Golden Mile
Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100
(2015)
89 NSWLR 237
Goodwin v Goodwin [2004] QCA 50
Green v
Sommerville [1979] HCA 60
(1979) 141 CLR 594
Hospital Products Ltd v United States
Surgical Corporation [1984] HCA 64
(1984) 156 CLR 41
In re Pavlou (A Bankrupt) (1993) 1 WLR 1046
John
Alexander’s Clubs v White City Tennis Club Ltd [2010] HCA 19
(2010) 241 CLR 1
Leigh v Dickeson [1884] UKLawRpKQB 206
(1884) 15 QBD 60
Mango Boulevard P/L v Spencer
& Others [2010] QCA 207
McWilliam v McWilliams Wines Pty Ltd
[1964] HCA 6
(1964) 114 CLR 656
Mehmet v Benson [1965] HCA 18
(1965) 113 CLR 295
Paolucci v
Makedyn Pty Ltd (2021) 20 BPR 41,749
Pianta v National Finance and
Trustees Ltd [1964] HCA 61
(1964) 180 CLR 146
PSAL Pty Ltd v Raja [2016] WASC
295
Recycling Developments Pty Ltd & Anor v Bespoke Recycling
Industries Pty Ltd & Anor [2024] QSC 42
Shanahan v Fitzgerald
[1982] 2 NSWLR 513
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57
(2003) 217
CLR 315
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
(2015) 256 CLR
507
UBS AG v Tyne [2018] HCA 45
(2018) 265 CLR 77
Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2)
[2018] FCAFC 132
(2018) 265 FCR 290
Judgment (134 paragraphs)
[1]
EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE - RELEVANT CONSIDERATIONS AND DEFENCE MATTERS - ACTS INCONSISTENT WITH CONTINUANCE OF CONTRACT - BREACH OF CONTRACT - where the plaintiff and defendants entered into a settlement agreement concerning the disposition of land - where the settlement agreement provided for a transfer of a half share to plaintiff as tenant in common in equal shares - whether the plaintiff's breach by failing to pay rates and charges associated with the property under the agreement was a breach of an essential obligation - where specific performance is not precluded by the plaintiff's breach, and damages are an inadequate remedy
[2]
EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE - GENERALLY - where the defendants made substantial improvements to the property which increased its value - whether an order for specific performance should accommodate the current value of the property
[3]
EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - BREACH OF FIDUCIARY OBLIGATIONS - whether the first defendant held the property on trust and whether defendants breached the trust by executing mortgages - whether the first defendant held the property on trust for the plaintiff and itself
[4]
REAL PROPERTY - PARTITION OF LAND - STATUTORY TRUST FOR SALE OR PARTITION - GENERALLY - where s 38(1) of the Property Law Act 1974 (Qld) provides that the Court may appoint trustees for sale of the property - whether upon sale, the amount the plaintiff can receive from the proceeds should be limited
[5]
ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL - GENERALLY - where the plaintiff previously instituted proceedings against the defendants - where the previous proceeding was dismissed for failure to comply with a self-executing order - whether a self-executing order was a determination on the merits of the previous proceeding
[6]
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL - GENERALLY - whether claims made in the current proceeding could have been made in the previous proceeding - where the plaintiff became aware of facts after engaging with new legal representation - whether the claims are precluded by Anshun estoppel
[7]
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - ATTEMPTS TO RELITIGATE - where the plaintiff previously instituted proceedings against the defendants - where the previous proceeding was dismissed for failure to comply with a self-executing order - whether the current proceeding is an abuse of process - whether permitting the current proceeding to continue to a determination on the merits is unjustifiably oppressive
[1] This proceeding, commenced by claim filed on 7 December 2022, concerns real property located at 25 Freeman Road, Toorbul, Queensland. The first defendant is the registered owner of the property.[1]
[2] The plaintiff seeks the following:
[36]
(a) Declarations that:
(i) Prior to the grant by the first defendant of mortgages, it held the property upon trust for the plaintiff and the first defendant as tenants in common in equal shares;
(ii) In granting the mortgages and permitting their registration the first defendant was guilty of a breach of trust upon which it held the property or breached its fiduciary duties to the plaintiff;
(iii) The second and third defendants are accessories to the first defendant's breach of trust or breach of fiduciary duties;
(iv) In the premises of (i) to (iii) the first, second and third defendants are liable to indemnify the plaintiff from and hold him harmless against the consequences of the breach of trust or breach of fiduciary duties;
(v) In the alternative to (iv) and the orders as to the distribution of the proceeds of sale below, equitable compensation as against the first, second and third defendants as a consequence of the breach of trust or the breach of fiduciary duties.
(b) An order that a written agreement dated 20 February 2019 (the settlement agreement) be specifically performed as required by clause 1 of the settlement agreement, and that the costs of the transfer of the property be paid equally by the plaintiff and the second defendant (as an implied term of the settlement agreement), in the alternative, damages in lieu of specific performance of the settlement agreement;
(c) Pursuant to s 38 of the Property Law Act 1974 (Qld) statutory trustees be appointed as trustees for the sale of the property and that the property vest in the trustees for the purposes of sale, along with various ancillary orders.
[37]
[3] The evidence comprised the following. A "resolution bundle" (exhibit 1) was agreed to be admissible for all purposes. Counsel for the plaintiff tendered: affidavits from two persons concerning the willingness of each to act as a trustee for any sale of the property; a trust account receipt showing a deposit of $35,353.29 to the plaintiff's solicitors' trust account; and correspondence to the defendants' solicitors about those funds. Counsel for the plaintiff called as witnesses the plaintiff and the executor of the estate the settlement agreement was concerned with.
[4] The plaintiff advanced his case by addressing the issues in the following order; submissions concerning specific performance and the inadequacy of damages; submissions concerning the alleged breach of trust and the alleged breach of fiduciary duties; and then submissions concerning the appointment of statutory trustees for sale. It is convenient to deal with the plaintiff's claims in the same order.
[5] The defendants' position is that the plaintiff is not entitled to any of the relief sought and the proceedings should be dismissed. However, in the event the Court considers relief should be granted, the defendants contend that it should be confined to damages in the amount of $437,500.
[6] The defendants also contend that the plaintiff's claims are precluded by the doctrine of res judicata, Anshun estoppel or abuse of process.
[7] This judgment determines first whether the plaintiff is precluded from pursuing his claim and the conclusion is that he is not precluded. The claim is then considered. The results of that consideration are that there will be an order for specific performance and an order for the appointment of statutory trustees for sale, upon the parties bringing in minutes of orders which reflect the reasons below. No declarations are made.
[38]
Background to the claim in the current proceeding
[39]
[8] The circumstances which have given rise to this proceeding are as follows.
[9] The plaintiff is the brother of the second defendant. The first defendant is a corporate entity. The second defendant is the director of the first defendant, and has been the sole director since 13 September 2018. The third defendant is her partner.
[10] The father of the plaintiff and the second defendant, John Alexander Crawford, died in April 2017. In his will, he left a legacy ($5000), then the residue of his estate to the plaintiff and the second defendant in equal shares as tenants in common.
[11] The settlement agreement resulted from a mediation on 20 February 2019. The plaintiff (together with his lawyer), the first defendant (through its director, the second defendant), the second defendant (together with her lawyer), the third defendant and the executor of the father's estate participated in the mediation. The settlement agreement was signed by the plaintiff, the current defendants and the executor. It was headed "BS 1497/16 BS2957/18 20 February 2019 Terms of resolution of issues relating to the affairs of the estate of John Alexander Crawford (JAC) and Ainsworth Investments Pty Ltd ACN 010 744 779 (AIPL)". The terms were as follows:[2]
[40]
"1 In part compromise of SAC's claim against AIPL and the executor and by way of further provision for SAC, AIPL will transfer a half share in the Toorbul property to Scott Andrew Crawford (SAC) as tenant in common with AIPL in equal shares
[41]
The costs of transfer must be paid from JAC
Occupancy of the property must be as follows:
[42]
(a) The property has an existing fence such that it is divided into two areas as approximately shown on the attached aerial photo.
(b) SAC is entitled to occupy the portion of the property (containing the house, sheds and infrastructure) north of the fence for three years from today rent free.
(c) Gillian Alexis (GA) is entitled to occupy the residual portion of the property from three years from today rent free.
(d) Neither AIPL nor SAC may seek appointment of trustees for sale or otherwise force a sale of the property for 3 years.
[43]
SAC must pay 70% of the rates, regulatory charges, insurance (Public liability) and 100% of house and improvements insurances for the property
[44]
5A GA must pay 30% of the rates, regulatory charges, insurance (Public liability) and necessary outgoings for the property
[45]
5B Any commercial activity undertaken by either party would require insurance appropriate to the activity, including public liability at their cost
[46]
In part compromise of these actions, JAC waves (sic) /discharges the 'debt' from AIPL the subject of the Statutory Demand
In part compromise of SAC claims against AIPL, AIPL releases SAC from all alleged indebtedness.
JAC transfers 21 shares back to GA, in part compromise of these actions.
All Supreme Court proceedings (1497/2016 and 2957/2018 must be discontinued with all parties to pay their own costs (including reserve costs), reserving the rights of JAC's costs out of the estate of JAC.
SAC must withdraw caveat #718486605 and discontinues his application in BD 4751/17
The executor shall administer the estate, and make interim residuary distributions, as soon as practicable
AIPL and SAC grant the other a right of first refusal to purchase the half shares owned by them to the other upon the death of SAC or GA respectfully (sic).
Fulfillment of these terms shall be in complete satisfaction of all claims of any nature any party may have against another"
[47]
[12] The settlement agreement concerned three proceedings: Supreme Court proceedings 1497/16 and 2957/18 and District Court proceeding BD 4571/17. Proceeding BS 1497/16 had been commenced in September 2016 by the deceased father's litigation guardian. The defendants were the plaintiff and the second defendant and that proceeding sought, among other matters, relief in respect of shareholding in the first defendant. The District Court proceeding had been commenced in December 2017 by a Ms Ybanez. She sought provision from the estate of the deceased. The plaintiff also sought provision from the estate. Proceeding BS 2957/18 had been commenced in March 2018 by the plaintiff against the first and second defendants and the executor of the estate, Mr Love. Among other matters, the plaintiff sought relief as to shares in the first defendant that had been transferred from the deceased to the second defendant and declarations that the first defendant held the property on trust for the plaintiff.
[13] The settlement agreement addressed eight matters. First, the transfer of a half share in the ownership of the property (clause 1). Second, the cost of this transfer (clause 2). Third, occupation of the property and the terms of occupation (clauses 3, 4, 5A and 5B). Fourth, forgiveness of debts (clauses 6 and 7). Fifth, share transfers (clause 8). Sixth, the resolving of then pending proceedings (clauses 9 and 10). Seventh, administration and distributions from the estate (clause 11). Eighth, future ownership of the property (clause 12). The fifth matter only concerned the estate and the second defendant. The first defendant undertook to transfer a half share in the property to the plaintiff. The costs of the transfer were to be paid by the estate. Mr Love gave evidence that at the time the settlement agreement was reached the estate had sufficient funds available to meet the costs of the transfer.
[14] The trial proceeded on the basis that, apart from non-compliance with clause 4, the plaintiff had complied with all the other obligations imposed on him by the settlement agreement.
[15] As at 20 February 2019 the property was worth $875,000. Since that date the second and third defendants have made substantial improvements, such as by building a house on the property. On 5 September 2022 the land was worth $1.125m to $1.2m and the property was worth $1.9m to $2.1m. The current value of the property is $2.4m.
[48]
[21] In the previous proceeding[3] the plaintiff sought a declaration that the settlement agreement[4] be declared void for common mistake. On 30 September 2021 the plaintiff was given leave to add Mr Love, the executor, as the third defendant. Leave was also given to amend the claim so that the orders sought were:
[49]
(a) That the "Deed of 20th February 2019 be read and construed as entitling the plaintiff to an unencumbered one half share of the Toorbul property that, save for clauses 4 and 5 of the Deed is only subject to obligations and/or liabilities attaching thereto or otherwise payable in respect to the parties' performance of all transactions required by the Deed which are no greater than those of [Ms Alexis]".
(b) "Specific performance of the Deed as so construed".
[50]
[22] On 22 October 2021 the claim and statement of claim were amended to seek rectification of the settlement agreement or a term implied based on a common intention that the plaintiff was to receive an unencumbered one half interest in the property only subject to obligations or liabilities attaching to the parties' performance of transactions required by the agreement that were no greater than those of the plaintiff. Specific performance was sought based on that construction. The steps taken up to 22 October 2021 were taken by solicitors on the plaintiff's behalf.
[23] On 12 November 2021 the plaintiff filed a notice that he was acting in person. The plaintiff gave evidence in the current proceeding about why he came to act for himself in the previous proceeding. He said that he had lost all confidence in his solicitor and could not afford to have anyone act for him after that. It was clear from his evidence in this proceeding that the plaintiff had no legal training.
[24] On 25 November 2021 orders were made striking out some paragraphs in the amended statement of claim. Leave was given for the plaintiff to file and serve a further amended statement of claim within 28 days. The plaintiff did not comply with that order. His explanation for not doing so in this proceeding was that he did not know what to do, he had no money and he could not find anyone to help him.
[25] On 16 February 2022 the Court heard an application to strike out the further amended statement of claim on the basis that it disclosed no reasonable cause of action and that the plaintiff had not filed and served a further amended statement of claim. Alternatively, dismissal for want of prosecution was sought. The Court made orders that the time for complying with the previous order for filing a further amended statement of claim be extended to 4:00 pm on 17 March 2022 and if the plaintiff did not do so by then the proceeding would be dismissed and in that event the plaintiff was to pay the defendants' costs on the standard basis. Before these orders were made the judge explained the nature of the orders to the plaintiff and informed him that if he did not comply the case would "automatically be over". The plaintiff said he understood. The plaintiff did not file any further amended statement of claim by 4:00 pm on 17 March 2022 and the proceeding was dismissed.
[26] In this proceeding the plaintiff said he did not file the further amended statement of claim as he did not have the ability.
[51]
[27] The defendants submit that res judicata applies to preclude a renewed claim for specific performance in this proceeding. As the claims for damages in lieu of specific performance and for the appointment of statutory trustees for sale depend on an order for specific performance the defendants submit the effect of res judicata is that these claims should also be dismissed. It is asserted that these claims merged in the order made on 16 February 2022.
[28] In Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 - Privilege Claims) it was said that:[5]
[52]
"Res judicata (a 'matter adjudicated'), in the strict sense, is the rule or doctrine whereby a judicial determination which settles or quells a controversy between persons or classes of persons concerning the existence of certain rights or obligations results in those rights or obligations 'merging' in the final judgment, with the result that those rights or obligations cease to have any independent existence and cannot be reasserted in subsequent proceedings: ... For the doctrine of res judicata to operate, it must be shown that the earlier judicial determination was a final judgment on the merits and that, as between the former and present litigation, there is identity of parties, as well as identity of subject matter or cause of action: ..."
[53]
[29] The plaintiff submits that res judicata does not apply because there was no final determination of the plaintiff's claim in the previous proceeding and properly understood the claim in the present proceeding is in substance different from the claim in the previous proceeding.
[30] In this proceeding, I consider that res judicata does not operate to preclude the plaintiff from agitating the claim for specific performance, the claim for damages in lieu or the claim for the appointment of statutory trustees for sale. The order made on 16 February 2022, a self-executing order, was not a determination on the merits of the previous claim for specific performance.
[31] In Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) the Full Court of the Federal Court said:[6]
[54]
"In some instances, judgment may be entered procedurally, such as by operation of a self-executing order in default of compliance with a direction or other order of the court. In some cases, dismissal is effected by operation of the rules, such as where cases have been inactive for a specified period and notice has been given but further steps have not been taken. However, such cases are in a different category because there is no hearing. They are akin to cases where orders are made ex parte. The doctrine of res judicata does not apply to orders of this kind: Mango Boulevard Pty Ltd v Spencer[2008] QCA 274 at [57]- [61]. They are not a final determination of rights. Consistently with that position, a self-executing order for judgment operating in default of compliance can always be the subject of an application for an extension of time for compliance after the specified date: ..."
[55]
[32] In Mango Boulevard P/L v Spencer & Others, Fraser JA said:[7]
[56]
"[115] In Pople v Evans, Ungoed-Thomas J discussed the authorities, both ancient and modern, and concluded:
[57]
'Lord Maugham said in New Brunswick Rail Co v British & French Trust Corporation Ltd[1939] AC 1, 19:
[58]
'The doctrine of estoppel is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.'
[59]
That case and the Kok Hoong case [1964] AC 993 showed the concern of the courts to limit the operation of res judicata to issues which can be fairly regarded or treated as having been disposed of by the order relied on on their merits, for example, by trial, admission or compromise. It seems to me that the non-technical and substantial nature of res judicata 'founded on the considerations of justice and good sense' has no place for mere dismissal for want of prosecution ...
[60]
[116] The same reasoning appears to me to be equally applicable in relation to a judgment given for non-compliance with obligations to disclose documents under procedural rules or pursuant to an order for disclosure. The two different forms of order have a common foundation in conduct by a party which is so procedurally deficient as to justify summary termination of the proceeding without regard to the merits. Plainly such judgments do not involve any actual determination on the merits and I see no reasonable basis for treating them as determining the merits of any issue. Such judgments should be distinguished from default judgments which have been treated as giving rise to a res judicata or an issue estoppel, such as a judgment based upon default of pleading (which may be explained on the ground that the party in default has or should be taken to have admitted the allegations) and a consent judgment based upon a compromise (where the parties should be held to their compromise). ..."
[61]
[33] As the previous proceeding was not disposed of on the merits, it is unnecessary therefore for the purposes of determining this aspect of the defendants' argument about preclusion to decide whether the claim in the current proceeding is different from the claim in the previous proceeding.
[62]
[34] The defendants rely on Anshun estoppel[8] as precluding the entirety of the plaintiff's claims. In Tomlinson, it was said:[9]
[63]
"... 'Anshun estoppel' ... operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. ..." (Footnotes omitted)
[64]
[35] The defendants submit this form of estoppel arises because the allegations and claims for relief made by the plaintiff in the current proceeding are so closely connected with the allegations and claims he made in the previous proceeding that "the plaintiff's claims in the present proceeding could have been made in the previous proceeding; the plaintiff's claims in the present proceeding should have been made in the previous proceeding; and, it was unreasonable for the plaintiff not to have raised the claims he now makes in the present proceeding in the previous proceeding".[10]
[36] Various claims are made in the present proceeding. The claim for declarations relates to the mortgages executed in February 2021 and registered in May 2022. The plaintiff's evidence was that he only discovered the existence of the mortgages when his current solicitors informed him about them. This evidence was not contradicted or even challenged. I accept the plaintiff's evidence. The previous proceeding had been commenced by different solicitors. Accordingly, the claim for various declarations is not a claim that could have been made in the previous proceeding as the plaintiff did not then know about the mortgages.
[37] In the present proceeding the plaintiff makes a claim for specific performance of the settlement agreement. His claim in the previous proceeding was a claim for specific performance of the settlement agreement. Although the previous proceeding sought specific performance of the settlement agreement "as so construed", that does not in substance render the current claim for specific performance different from the previous claim for specific performance.[11]
[38] Accordingly, this form of estoppel does not operate to preclude the plaintiff from claiming specific performance in the current proceeding or from pursuing his other claims.
[65]
[39] The defendants submit that the entirety of the proceeding should be stayed on the basis of abuse of process. Alternatively that the claims for specific performance, damages in lieu and the appointment of statutory trustees for sale, should be stayed on the basis of abuse of process. The previous proceeding had been dismissed due to the plaintiff's failure to file an amended statement of claim by 17 March 2022 and nearly a year later the plaintiff commenced the current proceeding in which he seeks to re-agitate what are in substance the same claims, as well as vexing the defendants with new claims.
[40] Commencing a proceeding which raises a claim or claims that have been previously determined and/or commencing a proceeding which raises a claim or claims that ought reasonably to have been raised for resolution in an earlier proceeding can constitute an abuse of process.[12] As already stated, the previous proceeding was not determined on the merits. It was dismissed when the plaintiff failed to file an amended statement of claim within a specified time. However, undue vexation, which an order for a stay can prevent, is not confined to a proceeding commenced about a claim which has been previously determined on its merits.[13]
[41] Permitting the plaintiff's current proceeding to continue to a determination on the merits is not unjustifiably oppressive to the defendants and would not bring the administration of justice into disrepute for the following reasons. [14]
[42] The plaintiff provided an explanation about the failure to file the amended statement of claim by 17 March 2022. His explanation was that having lost confidence in his solicitor he did not have the resources to obtain a new solicitor and he did not have the ability to replead his claim. He knew that if he did not do so by 17 March 2022 the proceeding would be dismissed. His explanation was not challenged in this proceeding. I accept it as being a truthful explanation. It explains why the plaintiff allowed the previous proceeding to be dismissed. It was not to his obvious advantage to have allowed this to occur.
[43] The delay between the dismissal of the previous proceeding and the commencement of the current proceeding was only in the order of nine months. It was not a lengthy delay. No particular detriment has been identified as flowing to the defendants from the commencement of the current proceeding beyond the fact that they have had to incur expenses to defend themselves against claims that they may have thought would not trouble them again. The plaintiff's evidence was that he complied with the order requiring him to pay the defendants' costs in the previous proceeding. This evidence was not challenged and I accept it.
[66]
Specific performance and the inadequacy of damages
[67]
[45] Various arguments were made regarding performance of clauses 1 to 4 of the agreement.
[46] The plaintiff submits that the first defendant failed to transfer the interest in the property pursuant to clause 1 of the agreement. His position is that he was not required to do anything else as a precondition to the transfer of the interest in the property. The plaintiff recognises that specific performance will not be ordered unless damages are an inadequate remedy,[16] but submits that land is unique and damages are usually not regarded as adequate even where the person seeking specific performance intends to sell the land.[17]
[47] The defendants recognise that the settlement agreement conferred a contractual right to a transfer from the first defendant,[18] but argue that specific performance should be refused for three reasons. First, the estate has not paid the transfer costs as required by clause 2 of the agreement. Thus, the obligation to transfer the half share to the plaintiff under clause 1 of the agreement has not yet arisen because there is no obligation it is said that can be specifically performed. Second, specific performance is only available if the party seeking it is not himself in breach of the contract and is ready, willing and able to perform it. The plaintiff has failed to perform the obligation imposed on him by clause 4. Third, being a discretionary remedy, the plaintiff in this proceeding, as in the previous proceeding, challenges the proper construction of the agreement. That circumstance along with his failure to comply with clause 4 should result in the Court withholding the remedy.
[48] The position is that the estate cannot meet the costs of the transfer of the half share of the interest as required by clause 2. Mr Love gave evidence that all the funds in the estate were expended by 27 July 2021. Currently, the estate owes $44,000 to third parties and cannot pay the costs of transferring a half share to the plaintiff, the transfer costs being estimated to be approximately $22,000.
[49] The plaintiff submits that the inability of the estate to pay the costs of the transfer need not present an obstacle to specific performance. Clause 2 attempted to spread the burden of the costs. If the estate had paid the costs that expense would ultimately have been borne by the residuary beneficiaries (the plaintiff and the second defendant). A term can be implied that if the estate cannot meet the transfer costs the equal residuary beneficiaries will bear the costs equally.
[68]
"The conditions necessary to ground the implication of a term were summarized by the majority in B.P. Refinery (Westernport) Pty. Ltd. v. Hastings Shire Council: '(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract'."
[69]
[52] It might be reasonable and equitable that equal beneficiaries under the will share equally in the costs of the transfer. Clause 2 provided that the estate was to bear those costs and ultimately that would have been at the expense of the plaintiff and the second defendant as residuary beneficiaries. However, obstacles to the implication of the term the plaintiff seeks are whether such an implied term is necessary to give business efficacy to the contract and is so obvious it goes without saying. I do not consider such a term is necessary to give efficacy to the contract. It is not obvious that the second defendant should be required to share in the costs of transferring a half share to the plaintiff. A more obvious term and one which would satisfy the test for the implication of a term is that if the estate could not do so, the person to benefit from the transfer should pay the costs of the transfer.
[53] The plaintiff has given evidence in this proceeding that he is prepared to pay the costs of the transfer. An order for specific performance could be made conditional on the plaintiff paying the costs of the transfer. In this way no obligation would be imposed on any party.
[54] In cross-examination, the plaintiff conceded that he understood clause 4 of the agreement required him to pay 70% of the rates, regulatory charges and various insurance premiums. He agreed he had not paid those amounts. His evidence was, "it was a case of you transfer the 50 per cent, my - and I will start paying that immediately. And that - that didn't happen, so that was why I've put it aside until such time it was worked out". The plaintiff's position is that he did not pay the rates etc because his understanding was that the obligation arose only once he had received his half share in the property. The genuineness of this belief finds support in the assertion of it in an email he sent to the second defendant on 11 May 2020. Also, the plaintiff testified that he had deposited about $35,000 into his solicitors' trust account and was willing to instruct his solicitors to use those funds to pay the outgoings for the property if that was necessary to obtain specific performance. The evidence is that these outgoings have been paid by the first defendant.
[55] The plaintiff submits that clause 4 is concerned with expenses usually borne by the owner of a property. It is clear when considered in the context of the agreement under which the plaintiff was to receive part ownership of the property that he is only obliged to pay the expenses set out in clause 4 from the time when he receives his half share.
[70]
"It is well settled that a plaintiff in a suit for specific performance is not required to show that he has strictly complied with all his obligations under the contract; it is enough that he has performed and is ready and willing to perform the substance of the contract ..." (Footnotes omitted)
[71]
[58] The plaintiff's breach of clause 4 is not a substantial breach of the contract. In Mehmet v Benson, Barwick CJ said:[21]
[72]
"The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations."
[73]
[59] The plaintiff's essential obligations were not those imposed by clause 4. The substantial matters bargained for in the present case were a transfer of a half share in the property, rights to occupation of portions of the land and the plaintiff discontinuing his claims against the first defendant and the estate. This last matter was addressed when the plaintiff ended his claims in BS 2957/18 and BD 4571/17.[22]
[60] The second defendants' position is that the total of the expenses due pursuant to clause 4 is $35,353.29. The plaintiff's evidence, which I accept, is that he has set aside about $35,000 in the event that he needs to meet expenses relating to clause 4. An order for specific performance could be made conditional on the plaintiff paying the sum presently owing for unpaid rates and insurance to the first defendant. In this way no obligation would be imposed on any party.
[61] The plaintiff ought not be denied the remedy of specific performance on discretionary grounds. The plaintiff's claim in the previous proceeding, in which initially he sought a declaration that the settlement agreement be declared void for common mistake and which then became a claim concerning the proper construction of clause 4, should not result in a refusal of specific performance. In advancing these claims the plaintiff did not evince an intention not to perform the contract. He has complied with his substantial obligations under the agreement. In any event, in the previous proceeding the plaintiff did seek "Specific performance of the Deed as so construed." His conduct can be regarded as involving the maintenance of a wrong view of the contract but nevertheless demonstrating a willingness to perform his obligation under clause 4 upon the Court determining the true nature of the obligation.[23]
[62] Specific performance of the agreement remains possible.
[63] A contract for the sale of land "has always been considered a proper subject for specific performance."[24] As previously noticed, the plaintiff's association with the property goes back for some decades. Also, his evidence was that he and his father acquired it through the vehicle of the first defendant.
[64] The plaintiff argues that damages would be inadequate because absent an order for specific performance the plaintiff would lose his interest in the property and would become an unsecured creditor against the first defendant. The plaintiff points out that according to an email the second defendant sent to him on 31 December 2024 the first defendant has no income. Although the property was unencumbered at the date the settlement agreement was made, mortgages were executed by the first defendant on 19 February 2021 through its director, the second defendant, in favour of the second and third defendants. Each of these mortgages charged the whole of the property for all monies due from time to time from the mortgagor to the mortgagees. Both mortgages were registered on 11 May 2022.
[74]
(a) a house with six bedrooms, four bathrooms and 20 six watt solar panels;
(b) a one bedroom cottage;
(c) at least one shed;
(d) stables capable of sheltering six horses;
(e) two biocycle treatment plants, three pumps, four water tanks and associated water reticulations; and
(f) landscaping and external lights, fencing, gates and underground power services and plumbing.
[75]
[68] It is accepted, by all parties that as at 5 September 2022 the value of the property was $1.9m to $2.1m with a land value of $1.125m or $1.2m. The significance of 5 September 2022 is that it was the date by which the plaintiff required the defendants to execute the transfer forms and release the mortgages over the property. It is accepted by all parties that the current value of the property is $2.4m, which apportions $1.4m for the land and $1m for the improvements. The plaintiff recognises that a decree for ("... specific performance could make provision for the improvements)".[26]
[69] The defendants' position is that if specific performance is to be granted an adjustment should be made to the decree to recognise the value added to the property by the improvements made by the second and third defendants. The defendants did not tender any evidence about the costs expended on the improvements.
[70] The defendants contend that the plaintiff cannot rely on the delay in the performance of the agreement arising from his breach of the agreement so as to obtain an interest greater than he would have received in 2019 by reason of the defendants' improvements. The defendants argue that if the contract had been performed in 2019, when the value of the property was $875,000, that value being substantially attributable to the land, all the plaintiff would have obtained would have been an interest with a value of 50% of $875,000. As it is accepted that the current value is $2.4m apportioned as $1.4m for the land and $1m for the improvements, the defendants submit that, at best the plaintiff would be entitled to 50% of the current land value. So an order for specific performance could be conditional upon the plaintiff paying the first defendant $1m for the increase in value due to the improvements.
[71] For the reasons which follow I consider an order for specific performance should accommodate the plaintiff effectively receiving half of the current value of the land. Mr Love's evidence was that at the time when the estate had funds available to pay the costs of the transfer he could not get the plaintiff and the first defendant to return a signed transfer form to him. This mutual failing impeded the transfer occurring in 2019. Also, the first defendant applied on 11 May 2022 to remove the caveat the subject of clause 10 of the agreement. A statutory declaration signed on its behalf by the second defendant discloses that as at that date both defendants regarded the settlement agreement as on foot. The statutory declaration included:
[76]
"6. On 20 February, 2019 the Caveator as Plaintiff and the Company as First Defendant and other parties participated in a mediation of the Proceedings and other proceedings. As a consequence of that mediation the Caveator and the Company agreed on terms of resolution of issues ("Terms of Resolution") with respect to the Proceedings and resolved their disputes regarding them.
[77]
The interest claimed by the Caveator in the Caveat is merged in the Terms of Resolution and pursuant to paragraph 10 of the Terms of Resolution the Caveator as Plaintiff is obliged inter alia to withdraw Caveat #7108486605."
[78]
[72] Consideration has been given to whether an order for specific performance should accommodate the current value of the property. However, the current value is due to improvements made to the property by the second and third defendants. That led to consideration about whether an order for specific performance should make an allowance for the amount expended by the second and third defendants which resulted in the improved value.[27] Further submissions were sought from the parties about whether any adjustment should be made based on the value of the improvements or made based on the costs expended which resulted in those improvements. Both parties submitted that there should not be an adjustment in monetary terms based on costs expended as no evidence had been tendered about the costs.
[73] In the further submissions, the defendants submitted there should be an adjustment for the value of the improvements and that the best way to give effect to this would be by way of an order providing for a monetary payment by them to the plaintiff with a suitable adjustment of the amount to reflect the value of the improvements, rather than the appointment of statutory trustees for sale. As to the quantum, if the appropriate valuation date is the current value, the improvements should be entirely excluded and the order should be that the defendants pay the plaintiff a sum of money representing 50% of the current value of the land.
[74] The plaintiff's further submission was that improvements should not be provided for in any decree for specific performance but if the Court decides they should be, then assuming current value the Court could order the proportionate distribution of the net sale proceeds by the statutory trustees by percentage "based on the value of improvements relative to the overall value". Assuming a value of $2.4m and based on improvements of $1m, the plaintiff should receive 33.33% of the net proceeds of sale which would be $700,000 if a sale achieved $2.4m.
[75] I consider the appropriate outcome should include a term in the order that the net proceeds of sale be distributed so that the plaintiff receives 33.33% and the first defendant receives 66.66% of those proceeds.
[76] In due course there shall be an order for specific performance conditional upon the plaintiff first paying (1) the sum presently owing for the outgoings the subject of clause 4 of the agreement to the first defendant, and (2) the costs of the transfer. The order shall include the term set out in the paragraph above.
[79]
[77] The plaintiff seeks a number of declarations: a declaration that prior to the first defendant granting mortgages over the property to the second and third defendants, the first defendant held the property on trust for him and the first defendant as tenants in common in equal shares; alternatively, a declaration that in granting the mortgages the first defendant breached its fiduciary duty to him. In the event either of these declarations is made, further declarations are sought concerning the alleged accessorial liability of the second and third defendants and their liability to indemnify the plaintiff against the consequences of the breach of trust or breach of fiduciary duty.
[78] The plaintiff's evidence was he did not consent to the second and third defendants lodging the mortgages and did not know of them until his solicitors informed him about them. He had not received any benefit from the mortgages. This evidence was not challenged. I accept the plaintiff's evidence about these matters.
[79] The plaintiff argues the effect of clause 1 was that the first defendant held the property on trust for it and him as tenants in common in equal shares. The trust was a constructive trust arising from the first defendant's role as vendor or because clause 1 was specifically performable at the time of the agreement. He submits that at the moment of entry into a valid contract for the sale of land the vendor becomes in equity a naked or bare trustee for the purchaser[28] and at that point the purchaser acquires equitable ownership of the land. The plaintiff relies on PSAL Pty Ltd v Raja where it was stated:[29]
[80]
"As counsel for PSAL submitted, the High Court in Tanwar (a case concerning relief from forfeiture) emphasised that the source of the parties' rights is the contract for the sale of the land, rather than the existence of a relationship of trustee and beneficiary. Nevertheless, the Court has not overturned, nor cast doubt on, its many previous decisions which establish that once the contract of sale becomes specifically enforceable (in the manner described above), the vendor holds the land as a bare trustee for the purchaser, pursuant to a constructive trust, and the purchaser acquires equitable ownership of the land." (Footnotes omitted)
[81]
[80] He submits that the first defendant breached the trust when it entered into the two mortgages because it burdened the property it held on trust for the plaintiff.
[81] The defendants argue that the claim for a declaration must fail because the first defendant did not hold the property on trust for it and the plaintiff from the date of the agreement. In reliance upon Tanwar Enterprises Pty Ltd v Cauchi[30] the defendants submit that even if the plaintiff was to be regarded as a purchaser of an interest in the property, it is not correct to regard the vendor (first defendant) as holding land on trust for the purchaser. In Tanwar, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ said:[31]
[82]
"At all events, the analogies drawn over a century ago in Lysaght with the trust and the mortgage are no longer accepted. Jacobs J observed in Chang v Registrar of Titles that:
[83]
'[w]here there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties.'
[84]
Subsequently, in Kern Corporation Ltd v Walter Reid Trading Pty Ltd, Deane J said:
[85]
'[I]t is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser'.
[86]
In Stern, Gaudron J points out, consistently with authority in this Court, that the 'interest' of the purchaser is commensurate with the availability of specific performance. That availability is the very question in issue where there has been a termination by the vendor for failure to complete as required by the essential stipulation. Reliance upon the 'interest' therefore does not assist; it is bedevilled by circularity." (Footnotes omitted)
[87]
[82] The defendants also submit that the relationship between the plaintiff and the first defendant cannot be equated to a vendor-purchaser relationship. Clause 1 of the agreement was not an agreement for the sale and the purchase of the property, it was part of an agreement to settle legal proceedings reached at a mediation. Clause 1 conferred a contractual right to a transfer from the first defendant, but did not create an equitable interest at the time of entry into the agreement.
[83] If the relationship were to be regarded as akin to purchaser and vendor, would there be a trust relationship? In Chang v Registrar of Titles, Jacobs J said:[32]
[88]
"... a vendor at the stage of contract where the contract is enforceable by specific performance has at times been described as a trustee: see, e.g. Shaw v. Foster; Lysaght v. Edwards; and if by that no more is meant than that the purchaser is regarded by equity as the beneficial owner of the estate of which the vendor is the legal owner then there is no difficulty in describing the vendor as a trustee. However, if by such a description it is sought to transpose into the law of vendor and purchaser the law governing the rights and duties of trustees, statutory or otherwise, considerable difficulties arise. ... confusion ... can arise from giving this description to a party to a contract for the sale of land assumed to be capable of specific performance simply because he has the obligation under the contract to transfer property to the other party on completion of the contract and because equity regards the other as beneficial owner. Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties." (Footnotes omitted)
[89]
[84] The position of a vendor of land was distinguished also in Commissioner of State Revenue (WA) v Rojoda Pty Ltd:[33]
[90]
"...[a] metaphorical and improper description, which continues to be regarded as inaccurate, of a vendor of land under a specifically enforceable contract of sale as a trustee."
[91]
[85] The plaintiff therefore puts the position too highly when he asserts that at the moment of entry into a valid contract for the sale of land the vendor becomes a trustee for the purchaser. His reliance on Golden Mile for this proposition is misplaced. In that case, Emmett JA said:[34]
[92]
"... While a vendor of real property under a valid contract of sale may become a trustee of the property for the purchaser, there is a question as to the time when such a trust relationship arises ... The vendor may be regarded unconditionally as a trustee for the purchaser when the contract is performed by the purchaser by payment of the purchase price."
[93]
[86] In McWilliam v McWilliams Wines Pty Ltd it was said that:[35]
[94]
"..., where the purchase money specified in the contract has been paid ... the vendor thereafter becomes a bare trustee."
[95]
[87] In the present proceeding the relationship between the plaintiff and the first defendant is not a relationship of purchaser and vendor. It is simply a relationship created by a contract. The conduct of the first defendant in undertaking to transfer a half share in the property is not to be recognised as a constructive trust. It was one part of an agreement in which both parties (the plaintiff and the first defendant) agreed to perform particular tasks to resolve their legal dispute.
[88] Regarding the mortgages, the settlement agreement contained no prohibition on the first defendant mortgaging the property. Such a term is not to be implied because:
[96]
"The creation of a mortgage or charge by a vendor is not of itself inconsistent with the contractual rights of the purchaser provided that the vendor retains the power to discharge the mortgage or extinguish the charge at or prior to completion so as to be able to perform his contractual obligation to cause the land to be vested in the purchaser on completion free from any such mortgage or charge."[36]
[97]
[89] No evidence has been tendered to establish the value of the mortgages.
[90] The plaintiff contends in the alternative that the first defendant was in a fiduciary position because the settlement agreement created a beneficial interest in the property. The plaintiff was vulnerable because the first defendant as the registered owner had agreed to transfer the interest in the property to him. This meant that the first defendant had a duty of loyalty to the plaintiff in respect of the property. The first defendant breached the prospective fiduciary duty by entering into the mortgages either in its own interest or in the interest of the second and third defendants.
[91] The plaintiff's argument is that the agreement itself gave rise to a fiduciary duty. The argument is that the settlement agreement regulated the rights and liabilities of the plaintiff and the first defendant.
"... it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."
[99]
[93] Clause 1 created a contractual obligation to transfer a half share but an obligation dependent upon someone else paying the transfer costs (clause 2). It was also dependent upon the plaintiff performing his other obligations (clauses 9 and 10). Clause 7 created an obligation on the first defendant to release the plaintiff from his alleged indebtedness to it. A relationship of trust and confidence is not to be seen here. It was a relationship where one party would do certain things and the other party would do certain things and if those things were done they would result in various legal proceedings being discontinued and a half share being transferred. Any vulnerability of the plaintiff or any reliance by him on the first defendant is only the vulnerability or reliance that any contracting party is exposed to. The first defendant did not undertake to do anything for or on behalf of the plaintiff.[38]
[94] As the first defendant did not hold the property on trust for the plaintiff and itself and as there was no fiduciary relationship between the first defendant and the plaintiff, it is unnecessary to consider the asserted liability of the second and third defendants. Their liability would have stemmed from either a trust or a fiduciary relationship.
[100]
[95] The plaintiff seeks the appointment of statutory trustees for the sale of the property. As I intend to order specific performance of the settlement agreement the plaintiff will then gain an entitlement to be registered as a co-owner of the property. Two independent persons have consented to act as trustees.
[96] Where any property is held in co-ownership,[39]s 38(1) of the Property Law Act relevantly provides that the Court may, on the application of one of the co-owners, appoint trustees of the property and vest the property in those trustees to be held by them on a statutory trust for sale.
[97] The power conferred by s 38 is a discretionary power, however, it will ordinarily be exercised in favour of the appointment of trustees for sale.[40]
[98] The argument the defendants advance against the making of an order is that the plaintiff is not entitled to specific performance. However, I have held that he is entitled to that remedy subject to him complying with two conditions. In this event, the defendants argue that there should be an order made providing that the maximum amount the plaintiff can receive from the proceeds of any sale (prior to the deduction of the costs of such a process) is $437,500. However, for the reasons set out earlier the appropriate outcome is that the net proceeds of sale be distributed so that the plaintiff receives 33.33% and the first defendant receives 66.66% of those proceeds.
[101]
[99] As reflected in these reasons, I intend to order:
That the first defendant specifically perform and carry into execution the deed of settlement executed on 19 February 2019 subject to the term and conditions set out at paragraphs [75], and [76] above; and
That statutory trustees be appointed for the sale of the property.
[100] Accordingly, I direct the parties to bring in minutes of orders that reflect these reasons.
[101] Upon the making of the orders I will hear the parties as to costs.
[102]
[1] Described as Lot 2 on SP211490, Title Reference 50762792.
[103]
[2] As the settlement agreement was recorded partly in handwriting and partly in typed form, counsel were asked to produce an agreed version of it in type written form. This version was made Exhibit 1B and is the version reproduced above.
[104]
[4] Referred to in that claim as the deed of settlement.
[39] The term co-ownership is defined in s 37 of the Property Law Act to mean "ownership whether at law or in equity in possession by 2 or more persons as joint tenants or as tenants in common".
[16] On 19 February 2021 the first defendant executed a mortgage (signed by the second defendant) in favour of the second defendant, in respect of the property and on the same date the first defendant executed a mortgage (signed by the second defendant) in favour of the third defendant, in respect of the property. The second and third defendants caused the mortgages to be recorded in the Land Title Act 1994 register on 11 May 2022. By these mortgages the first defendant charged the property with the payment to the second and third defendants of all monies due from time to time by the first defendant to the second and third defendants.
[17] On 11 August 2021 the plaintiff commenced a proceeding by claim in this Court against the first and second defendants ('the previous proceeding').
[18] On 4 October 2022 the plaintiff lodged a caveat on the property.
[19] Since the signing of the agreement the plaintiff has never paid any rates, regulatory charges, insurance (Public liability) or house insurance in relation to the property or buildings on it. His evidence was that by the time of this trial he had been in occupation of part of the property for the last 34 years.
[20] There is no dispute that the plaintiff has not received an unencumbered interest in the property as a tenant in common in equal shares with the first defendant. There is no dispute that if clause 1 of the settlement agreement had been performed he would have received an unencumbered interest as just described.
[44] There was no determination of the merits of the previous claim. Accordingly, the plaintiff's current proceeding is by no means a "serial" proceeding.[15]
[50] The defendants submit however that elements (1), (2) and (3) from the well recognised test for the implication of a term into the agreement cannot be established.
[51] In Codelfa Construction Pty Ltd v State Rail Authority of NSW Mason J said:[19]
[56] Clause 4 is to be construed differently. The clause obliged the plaintiff to begin paying 70% of the rates, regulatory charges, insurance (Public liability) and house and improvements insurance from the date the agreement was made. This was because clause 3(b) provided that "from today", meaning from 20 February 2019, the plaintiff was entitled to occupy the part of "the property (containing the house, sheds and infrastructure) north of the fence for three years from today rent free". Clause 3(c) provides that the second defendant was entitled to occupy "the residual portion of the property from three years from today rent free". Clause 5A obliges the second defendant to pay 30% of the "rates, regulatory charges, insurance (Public liability) and necessary outgoings for the property". The agreement allowed the plaintiff to occupy the portion of the property which contained the house, sheds and infrastructure whereas the second defendant was only to occupy the "residual" portion. The requirement for the plaintiff to pay 70% of the rates etc thereby reflects his more extensive right of occupation of structures, commencing on 20 February 2019. Nor is the argument that the expenses the plaintiff has not paid would normally be borne by an owner persuasive. The settlement agreement made a different arrangement from what might be regarded as the usual incidents of ownership. The right of occupation and the obligations attached to occupation commenced on 20 February 2019. The transfer of a half share of the fee simple, on the other hand, was not stipulated to occur on 20 February 2019. The plaintiff is in breach of clause 4.
[65] The defendants have not advanced any particular argument in support of the contention that damages would be an adequate remedy. They do submit damages in lieu of specific performance would be the "appropriate"[25] remedy because they say a monetary remedy will more easily accommodate the adjustment they say will be necessary to ensure the plaintiff does not gain a windfall benefit from improvements made to the property, since 2019 by the defendants. This is a matter dealt with below.
[66] For the reasons advanced by the plaintiff I am satisfied that damages would not be an adequate remedy.
[67] There is no dispute that as at 20 February 2019 the value of the property was $875,000. This was substantially the value of the land because only a nominal value was attributed to the improvements. The plaintiff accepts that since March 2019 the defendants have made various changes to the property which constitute improvements and have increased its value. The plaintiff accepts that the improvements include: