HIS HONOUR: Q. That is literally true, is it?
A. We didn't discuss it at all, ever. Not ever."
On at least one occasion, the defendant signed blank withdrawal forms on the account relating to the property for Dr Brand, though she says she expressed unhappiness at the time at doing so.
9 The property was sold in 1998 by the defendant purporting to act as executor of her mother for $132,000.
10 The two most important witnesses who gave oral evidence were the plaintiff and the defendant. The plaintiff was rigorously cross-examined, particularly as to the sources of funds she said she expended upon the property. I found her an impressive witness who did her best to give evidence of matters as she recalled them and stated frankly when she could not. I generally accept her evidence. Many of the facts stated above are based on her evidence, which I accept, including her evidence as to the history and terms of the tenancy. In areas which are contested, I generally accept her evidence as to the moneys she expended on the property during all the years, and in 1990 to 1995, and as to Dr Brand's encouragement of her to do so. In particular, I accept that all the moneys she expended were out of her own funds. Even if the money had been given to her by Dr Brand for that purpose, it would not in my view in the circumstances matter, since the evidence shows that the funds were expended by her. However, on the evidence, I do not find that he gave her any part of the money. The defendant was a much less impressive witness, being often unwilling to answer questions or answer them directly. However, I accept her evidence as to her lack of knowledge concerning the improvements to the property, as to her trust of her brother and as to the extent of communications between them concerning the management and tenancy of the property.
11 One basis upon which the plaintiff claims in these proceedings is that she has expended moneys on the property of another in circumstances in which it would be unconscionable for the other to retain the benefit without reimbursing the expenditure. There is no controversy that Dr Brand's share of the proceeds should be charged with the expenditure, but the defendant says she did not acquiesce in the expenditure of the moneys on the property, as she had no knowledge of the expenditure. This claim is made in the sum of $51,000 odd, being the moneys expended during the years 1990 to 1995. Claims of this sort have long been recognised in equity and enforced by the imposition by courts of equity of a charge. Among the cases in which this has been done I shall refer in particular to three.
12 The first is the decision in Unity Joint Stock Mutual Banking Association v King (1858) 25 Beav 72; 53 ER 563. In that case a father, who had purchased a small piece of land, did not acquire the title, but built a granary upon it at an expense of about £280. In May 1855 he put his sons in possession of the land and buildings and they erected two further granaries, a coal shed and a dwelling at an expense of £1,200. They had also supplied their father with goods to the extent of £249-13-7 in respect of his outlay in the building of the first granary. Sir John Romilly MR was of the opinion that the sons were entitled to a charge over the father's interest in the land in the sum of £1,200 plus £249-13-7, and declared that the sons had a charge or lien upon the property for those amounts.
13 Chalmers v Pardoe [1963] 1 WLR 677 is a decision of the Privy Council on appeal from the Court of Appeal of Fiji. In that case, Pardoe held land under a leasehold title from the Fiji Government. He allowed Chalmers into possession of the land and Chalmers erected buildings and made improvements on the land by an expenditure of £2,600. Thereafter, Pardoe excluded Chalmers from the land and refused to make any reimbursement for the expenditure. Delivering the opinion of the Privy Council, Sir Terence Donovan said (at 681 - 682):
"There can be no doubt upon the authorities that where an owner of land has invited or expressly encouraged another to expend money upon part of his land upon the faith of an assurance or promise that that part of the land will be made over to the person so expending his money, a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended. That was in fact the order in the Unity Joint Stock Banking case, though it appeared in that case that the landowner had never actually engaged or promised to make over the appropriate land. The facts of the case were most unusual. It was said in Plimmer v Wellington Corpn (1884) 9 App Cas 699, 714, that the court must look at the circumstances in each case to decide in what way the equity can be satisfied."