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[2016] FCA 1244
Federal Court of Australia
2016-10-25
Allsop CJ
Original judgment source is linked above.
ALLSOP CJ: 1 The applicants, Mr William Thomas Jones and Mrs Barbara Anne Jones, have brought proceedings against the respondents pursuant to s 51 of the Insurance Contracts Act 1984 (Cth) (the Act) in respect of the claim they say they have against the estate of the late Peter Thiessen, a Tasmanian solicitor. 2 The terms of s 51 are as follows: Claims against insurer in respect of liability of insured or third party beneficiary (1) If: (a) the insured or any third party beneficiary under a contract of liability insurance is liable in damages to another person; and (b) the contract provides insurance cover in respect of the liability; and (c) the insured or third party beneficiary has died or cannot, after reasonable inquiry, be found; then the other person may recover from the insurer an amount equal to the insurer's liability under the contract in respect of the liability of the insured or third party beneficiary. (2) A payment under subsection (1) is a discharge, to the extent of the payment, in respect of: (a) the insurer's liability under the contract; and (b) the liability of the insured or third party beneficiary, or the legal personal representative of the insured or third party beneficiary, to the other person. (3) This section does not affect any right that the other person has in respect of the liability of the insured or third party beneficiary, being a right under some other law of the Commonwealth or under a law of a State or Territory. 3 The respondents were Mr Thiessen's professional indemnity insurers under the relevant Law Society of Tasmania master policy scheme for Tasmanian solicitors. 4 The substance of the claim made by Mr and Mrs Jones is that Mr Thiessen acted negligently in connection with a family arrangement involving them, and their son John Paul Jones (to whom I will refer as "Paul" as was done in the evidence) and his wife Catherine Rosette Jones. Putting the matter very generally, under the arrangement the son and daughter-in-law sold their family home in Victoria and provided the proceeds from that sale to Mr and Mrs Jones to construct a second home on the land on which Mr and Mrs Jones lived just outside Hobart in Kellevie. Paul and Catherine moved, with their children, to the Kellevie property. While the second home was being built, everyone lived in the existing residence on the property. When the second home was finished, Mr and Mrs Jones moved into it, leaving Paul and Catherine and their children to live in the larger pre-existing home. Mr Jones had not been well and there had been doubt for a time whether he would live very much longer. Part of the arrangement (at least in the eyes of the parents) was that Paul would be ready to help look after his father, including doing work on the Kellevie property. Unfortunately, the relationship has broken down; it broke down not long after the second house was constructed. Mr and Mrs Jones have felt it necessary to move out. Their claim is for substantial damages based on what they see as the sterilisation of the value of the property caused, it is said, by the breaches of duty by Mr Thiessen in how he executed what he was asked to do. 5 Mr and Mrs Jones have not sued Paul and Catherine. The latter took no part in these proceedings. Evidence from them was not adduced by either party. It is a necessary part of this case to come to a view as to the respective rights of Mr and Mrs Jones, and Paul and Catherine, based on the evidence before me. If those rights were ever to be investigated in a suit among the family alone, the evidence and necessary conclusions might, of course, be different. 6 Given the framework of the submissions, it is first necessary to examine how the claim has been formulated in the pleadings. 7 Paragraphs 1 to 12 of the statement of claim set out what occurred before the retainer of Mr Thiessen. In 2011 and 2012, Mr Jones, who is retired, had heart surgery and developed cancer (paras 8 and 9). In about December 2012, Mr and Mrs Jones and Paul and Catherine "made an agreement" to the effect: (a) that if Paul and Catherine cared for Mr Jones and maintained the property and if they paid Mr and Mrs Jones $300,000, then the latter (Mr and Mrs Jones) would construct a two bedroom residence on the property and they would leave the property to Paul and Catherine in their wills; and (b) Mr and Mrs Jones would live in the two bedroomed home to be constructed; and Paul and Catherine would live in the existing four bedroom residence with their children. (para 11) 8 In December 2012, Paul and Catherine paid Mr and Mrs Jones the $300,000 (para 12). In December 2012, they, together with their children, moved into the four bedroom residence (para 10). Though not pleaded, the evidence was that these moneys were the net proceeds, or taken from the net proceeds, of the sale of the family home of Paul and Catherine in Victoria. (Tp48, ll.20-21; Tp68, ll.3-25) 9 The retainer pleaded in para 19 was that Mr and Mrs Jones and Paul and Catherine engaged Mr Thiessen "to provide legal services in late 2012 to give effect to the agreement." The retainer was said to be oral and constituted by conversations between Mr and Mrs Jones and Mr Thiessen. (It should also be noted that the evidence pointed to the retainer being made in January 2013.) It is to be noticed immediately that the pleaded retainer was not to advise as to whether to enter the agreement, but was only to give effect to it. 10 The duty pleaded (through an implied term of the contract of retainer and in tort) was "to act for the applicants with the degree of skill and care expected of a reasonably competent solicitor practising in conveyancing, land transactions and property matters". (para 20). 11 The legal services provided between December 2012 and March 2013 were the drafting of wills for both Mr and Mrs Jones and, importantly, the drafting of an "indenture" for all four to sign "so as to give effect to the agreement". (paras 21 and 22). 12 The breach of duty (in contract and tort) was particularised under para 23. The first basis of complaint was that Mr Thiessen failed to advise Mr and Mrs Jones to obtain independent advice about the indenture. The applicants abandoned as a basis of complaint that Mr Thiessen acted for all parties to the indenture. (Tp3, ll.7-9) However, it was put that he should have advised them to seek advice from someone who was not acting for Paul and Catherine. 13 The second basis of complaint was that he failed to advise the applicants not to enter into the indenture. 14 The third basis of complaint was that he failed to advise them of the consequences of entering into the indenture. 15 Many of the further complaints elaborated in detail upon this third complaint - the consequences of entering into the indenture: the drawing of a document that was said to be manifestly disadvantageous in that it "locked them into" living on the property with Paul and Catherine for the lives of the applicants; the failure to advise that the indenture would give Paul and Catherine an equitable interest in the property; the failure to advise that such an interest would lead to a right to lodge a caveat on the title; the failure to advise that if the indenture were executed the applicants would be unable to sell the property or use it as security or vary or withdraw from the agreement; the failure to advise that they would remain liable for rates, taxes and utility charges without any ability to require a contribution from Paul and Catherine; the failure to advise that if the indenture was not executed the agreement was unenforceable; the failure to draft the indenture to provide for a dispute resolution process or a mechanism to be relieved of the obligations of the indenture if the relationship broke down or if for any other reason they needed to sell or mortgage the property, for apportionment of rates, taxes and utility charged, and for an obligation upon Paul and Catherine to care for Mr Jones and to maintain the property.
The evidence 16 The evidence was comprised of the oral testimony of Mr and Mrs Jones and an agreed bundle of documents. 17 By way of introductory remarks about the evidence of Mr and Mrs Jones, it should first be said that it is clear that both were obviously very upset and distressed about the deterioration of their relationship with their son and daughter-in-law and grandchildren. This has hardened into anger over time, especially in the case of Mrs Jones. I have a number of reservations about the reliability of Mrs Jones' evidence. It was more consciously considered than was the evidence of Mr Jones and it appeared to be consciously directed towards the issues in the case. In various degrees, I have reservations about their recollection given the unpleasantness of the family dispute and their blame of Mr Thiessen. Mr Jones was, however, by and large, plain and direct in his evidence. I have serious reservations about some of Mrs Jones' evidence. 18 I will not deal with the evidence of Mr and Mrs Jones separately. Each was examined about broadly the same issues. I will, however, make particular reference to the evidence of each where it is necessary to do so in the narrative. I will seek to deal with the events broadly chronologically. The following should be taken, unless clearly stated otherwise, as my findings of fact.
Findings of fact 19 Mr Jones is 72, a carpenter and joiner by trade, who spent eight years in the New South Wales Police Force reaching the rank of Detective Constable First Class, and six years in full-time military service and thereafter running a general store in Queensland with Mrs Jones. 20 Mrs Jones, who is 68 years old, over the years ran a number of businesses, including a security business, a general store and a real estate sales and marketing business, and had previously worked as a nurse. She is obviously intelligent. 21 The evidence of both Mr and Mrs Jones, especially Mrs Jones, reveals to me that they both, and particularly Mrs Jones, had a clear understanding of the arrangement with their son which had been agreed between Mrs Jones and Paul by the end of December 2012. 22 Mr and Mrs Jones moved to Tasmania from Queensland in 2003, buying the 20 acre property at Kellevie. They ran a small flock of Staffordshire sheep and Angora goats and some chooks, and also planted a small orchard on the property. Mr Jones described it as a hobby farm. It needed, nevertheless, considerable work - shearing the goats twice a year and the sheep once a year and otherwise looking after the animals, especially the goat's feet, cutting hay, regular fencing, cutting firewood, tending to the road and other chores. 23 In 2011 (when he was 67) Mr Jones suffered two heart attacks and then, or in 2012, discovered that he suffered from multiple myeloma cancer. The latter condition came on quickly and he was soon debilitated in hospital. During 2011 or mid-2012, there was grave doubt as to whether he would long survive. At that time he could hardly walk from one room to another. 24 Because of Mr Jones' inability to work, the property at Kellevie deteriorated. The sheep and goats were sold. 25 During 2012, Mrs Jones had discussions with Paul about his selling up in Victoria where the family lived and moving to Tasmania to live on the property occupied by Mr and Mrs Jones. The conversations were between Mrs Jones and Paul. Neither Mr Jones nor Catherine took part in the discussions that led to the formation of the family arrangement at the centre of these proceedings. Mr Jones' understanding of the conversations between Mrs Jones and Paul came from what Mrs Jones told him of them. Mr Jones' understanding based on what he had been told is some evidence of those arrangements. This is not to use hearsay evidence illegitimately, but to recognise from the fact of what Mrs Jones said to Mr Jones that the arrangement between Mrs Jones and her son took a certain form. 26 The arrangement, to the understanding of Mr Jones, was that Paul (who was in his early forties in 2012) and Catherine would sell up their home in Victoria and move to Tasmania to live with Mr and Mrs Jones. They would come down to help Mrs Jones look after Mr Jones. They would pay to Mr and Mrs Jones what they got from the sale of their house, estimated to be about $300,000. That money would be used to pay off the mortgage of Mr and Mrs Jones, and to build a smaller house on the property for Mr and Mrs Jones to live in, Paul and Catherine and the children taking the larger existing home. Mr and Mrs Jones would leave the property to Paul and Catherine in their wills. This arrangement was made in the second half of 2012. Two days after Paul and Catherine arrived in Tasmania in December 2012, $300,000 was paid into Mr and Mrs Jones' bank accounts. Thus, at least some weeks or months before that Paul and Catherine, in reliance on the arrangement, agreed with third party buyers to sell their home in Victoria. 27 Mr Jones' view of the arrangement was explored in cross-examination. He recognised that Paul and Catherine would have a right to live in the larger house, but in one passage of evidence he said that he did not regard it as their home. (Tp48, l.18) (This ambivalence of expectation was perhaps one of the causes of the breakdown of the family relationship, a subject to which I will return.) But he did recognise in another passage of evidence that Paul and Catherine were effectively purchasing the larger house. (Tpp48-49) Though he did not turn his mind to the legalities, I am sure, and I so find, that Mr Jones understood that Paul and Catherine were entitled by the arrangement and its execution in 2012, and later in 2013, to some substantial interest in the property. Given the closeness evident between Mr and Mrs Jones I have little doubt that this was her understanding as well. His understanding was that rates, electricity and any land taxes would be shared 50:50. (Tp49, ll.21-35) 28 The gist of Mr Jones' evidence was that, by December 2012, a family arrangement had been agreed and acted upon. Paul and Catherine had sold their family home, moved to Tasmania, given, effectively, the proceeds of the sale of their home to their parents on the basis, agreed between the parties, that they would have a right to live in the existing home on the property and that a smaller home would be built and that the property would be left to them in the wills of the parents. 29 Taking into account and considering the evidence of Mrs Jones, in particular some of the reservations about it that I have, I find that Mr Jones' understanding of the agreement reflected the major part of that agreement. 30 Some comments need to be made about Mrs Jones' evidence about the forging of the agreement with her son Paul. In a number of respects it was unsatisfactory. From the beginning of the dealing with the subject in evidence, she was astute to attempt to ascribe to Paul, rather than herself, the idea of coming down to Tasmania. From early in dealing with the subject, I sensed that she was avoiding saying anything that may indicate that she encouraged Paul in the arrangement, whoever thought of the idea first. Without the evidence of Paul, it is difficult to be clear who said what to whom. But I have some real doubt that the whole arrangement was at the initiative of Paul. I say this not least because of the arrangement itself - the sale of his family's home, the effective giving of the net proceeds to his parents to reduce or eliminate their mortgage and the building of a house all in exchange for the property left in the wills of his parents. 31 One illustration of this tendency was Mrs Jones somewhat gratuitously ascribing to Paul a motive to give all the net proceeds to his parents as the evasion of his creditors. (Tp77, ll.39-40) There is no basis in the evidence otherwise to accept this, and I do not. 32 The real reservation that I have about Mrs Jones' evidence, and it must be said, aspects of her credit, arose from my view that parts of her evidence were disingenuous, at best. For instance, late on the first day of the case, not long (30 minutes) after the commencement of her evidence (during which she had taken every opportunity to ascribe to Paul the responsibility for the arrangement's initiation) the following exchange took place with her counsel, in chief: And at some point in those discussions that you had with Paul about potentially moving to Tasmania, it was said that you and Mr Jones would leave the entirety of the property to Paul and Kathryn [sic] upon the death of the last of you; do you remember discussions to that effect?---Well, that's sort of how Mr Thiessen put it. (Tp79, ll.7-10) It was quite inaccurate to say that Mr Thiessen suggested the mutual wills. It was clear from all the evidence that this had been agreed before Mr and Mrs Jones, and Paul and Catherine, saw Mr Thiessen in January 2013. Mr Jones' evidence was clear about that. (Tpp31, l.26 - 32, l.22) Eventually, that was Mrs Jones' clear evidence too. (See Tpp127-128, especially Tp128, ll.41-42.) 33 Another aspect of Mrs Jones' evidence that reveals an attempt to deflect or deny the aspect of the arrangement about leaving the property in their wills was early the next morning, again in chief, when the following exchange took place: Mrs Jones, yesterday I was asking you some questions in relation to the telephone conversations that you had with Paul regarding the possibility of him coming - well, him and his family coming to Tasmania. Can you tell his Honour what discussions you had with Paul about what would happen with the property in the event of the death of you and Mr Jones?---Your Honour, on - with our telephone conversations that wasn't even spoken of. (Tp89, ll.31-36) I reject that evidence. It is plain that she spoke to her husband about this very thing: see Tpp31, l.45; 32, l.26; 32, l.45; 33, ll.12-15; 47, l.12; 58, ll.26-27; and 59, ll.10-15. She herself accepted that it had been agreed: Tp128, ll.41-42. She was only talking with Paul and it was on the telephone. 34 It is unnecessary to make any specific finding about who, between Mrs Jones and Paul, first broached the subject of Paul and his family moving down to Tasmania. It can be accepted that the immediate context was Mr Jones' ill-health, his apparent inability in 2011/2012 to look after the property and the strain on Mrs Jones in looking after an ill husband. It may have been Paul who raised it. Nevertheless, Mrs Jones accepted, and I find, that she encouraged Paul to believe that the $300,000 would be used to reduce their mortgage (for his ultimate benefit in freeing the property from debt) and to build the second house; and that when the new house was built, Mr and Mrs Jones would live in it and Paul and his family would live in the large existing house. 35 It is clear that in the minds of Mr and Mrs Jones, particularly Mrs Jones, that an aspect of the arrangement of some importance was the help that Paul would be able to give to Mr and Mrs Jones (particularly the latter) in work around the property and in helping with Mr Jones when assistance was needed. Indeed, this became an important aspect of the pleaded case: see [7(a)] above. It was said to be part of the consideration for the agreement. Yet, it is clear from Mrs Jones' evidence that there was very little discussion between her and Paul about any obligation on him to maintain the property and to give her assistance with Mr Jones or about any expectation on her part that he would do this. The following exchange took place at Tpp116, l.3 - 117, l.18: Right. So had it been agreed, before you saw the solicitor, that Paul and/or Kathryn [sic] would provide personal care to William?---Yes. Right. What was agreed?---The personal care was to help me and assist me in any way by driving or helping me take Bill to the hospital for treatments or whatever. Things like that to do with Bill. Did you discuss how much time would be required on any day or any week?---No. Did you ---?---There was - - - --- have an expectation as to how much time might be required on Paul's part?--- Yes. I felt - What was your expectation?---I felt Paul, being a son, should offer. In the whole time they lived with us, he never offered once. No, no. No. Let's not stray into later events?---Okay. Let's look at when you're having these discussions. Did you have an expectation as to how many hours or how much effort was required by him to provide this personal assistance?---I didn't have any hours, but I just thought he would help. Right. Did you convey that to him? Did you say, "Look, this is what is necessary to be done"?---No. Not really. Did you ever say to him, "Look, one of the things you will have to do, for example, is to drive Bill to his doctor's appointments"?---No. I didn't think I needed to. Did you ever say - I don't mean to cut you off, Mrs Jones?--- Okay. Is there something else you wanted to say?---I just - I just said I didn't think I needed to do that. I thought a son - Right. But - just listen to my questions, please. Did you ever say to him, "Look, I will need assistance in bathing Bill and feeding him"?--- No. Did you ever say, "I will need Kathryn's [sic] assistance"?--- No. Was it ever discussed between you and Paul that Kathryn [sic] was required to provide some level of personal care to Bill?---No. Was it ever discussed that Paul and/or Kathryn [sic] would provide personal care to you?---No. Let's look at maintenance. Did you have any discussions with Paul - again, this is before you saw the solicitor - about what maintenance was required to be undertaken at the property?---Well, he knew he had to keep the grounds up - No, no, no. I will stop you there?---Yes. Did you have any discussions with Paul about what was required?---No. Did you use the word "maintenance" at all?---Yes, I did use the word "maintenance". I - What did you say?---I said there was plenty of maintenance jobs to be done. Did you specify ?--- But he's an adult. --- what they were?---Sorry? Did you specify what they were?---No. The most that seems to have been said was that he "would have to help". (Tp118, l.24) 36 That there was little discussion about these subjects in the context of Mr Jones' ill-health can be understood; and the assumption of a parent as to such assistance as part of the arrangement can also be understood. I am prepared to find that the willingness of Paul "to help" his mother and father around the property and help care for Mr Jones to the extent reasonably necessary were part of the mutually assumed foundation of the family arrangement. It was a matter of sufficient importance to be included in the recitals (cl1.3) of the document produced by Mr Thiessen, as to which, see below. But they were not subjects discussed with Paul in a manner that suffices to enable the articulation of a precise legal condition or term attached to the creation or transfer of a property interest. However, the legitimacy of the assumption about these matters made the assumption an integral part of the overall foundation of the arrangement. 37 By way of further elaboration of the arrangement as correctly understood by Mr Jones, the following can be added. The agreement of Paul was to provide the $300,000 to pay down the mortgage on the property and to fund the building of a house on the property for Mr and Mrs Jones. This agreement required the funds to be used for these purposes. It was agreed that Paul would be involved in building the house - that he would contribute his labour to build the house, for which (implicitly) he would not be paid. Mrs Jones (ultimately) accepted, and I find, that it was an important part of the arrangement that Paul and Catherine would inherit the property. This was (as Mrs Jones accepted) part of what she (and Mr Jones) had agreed in consideration of the payment of the $300,000. Mrs Jones agreed, and I find, that she (and through her, Mr Jones) agreed "to bind [themselves] to convey this nice property to them as part of the consideration for receiving $300,000." (Tp126, ll.37-38) 38 By the end of 2012, when Paul, Catherine and the children arrived, Mr Jones' condition had improved. There had been remission of the myeloma. By the time of the visit to Mr Thiessen in January 2013, he had "turned the corner." (Tp57, ll.46-47) Mr Jones was doing some fencing and other jobs around the property, although much of the work had been given to outsiders to do: the cutting of hay, the cleaning of the dam and so forth; and the animals had been sold (Tp46, ll.7-29). Some of the evidence of Mrs Jones appeared to paint Mr Jones as still very ill in late 2012 and early 2013. (Tpp76, l.43- 77, l.2; Tp90, ll.3-7) I prefer the evidence of Mr Jones in this regard. 39 The relationship between Mr Jones and Paul had always been very good ("like a father and son should be" (Tp33, ll.32-33)), as was the relationship between Mr and Mrs Jones and their daughter-in-law. The parties were happy with the relationship when it began. All expected to live in harmony. The later disagreements, violence and squabbles could not, in Mr Jones' view, be foreseen "in [his] wildest dreams." (Tp55, l.31) 40 It was against this background that Mr and Mrs Jones, Paul and Catherine went to see Mr Thiessen. It is important to understand that the agreement between the parties had been reached and, from Paul and Catherine's perspective, implemented in a fundamental respect - they had sold their home in Victoria, moved the whole family to Tasmania, and given the net proceeds to Mr and Mrs Jones. 41 Mr Jones was tolerably clear in his evidence as to the purpose of the visit to Mr Thiessen, and as to what was said and not said to Mr Thiessen. The purposes for Mr Jones were, first, to have their wills done to leave the property to Paul and Catherine; and, secondly, to have an acknowledgment in writing to show Paul and Catherine that nothing was being hidden and to be able to show their daughter, Tanya, why they were leaving the property to Paul and Catherine, and not to her. Mr Jones accepted that all he wanted was a piece of paper as evidence of what he and his wife had already agreed; in particular, so that Tanya could be shown. There was no request for advice as to the arrangement. The limited nature of these matters was reflected in what Mr Jones did, and did not, say to Mr Thiessen. There was no discussion with Mr Thiessen about sharing rates, taxes and utilities, or about how the $300,000 was to be used. There was some discussion about Paul and Catherine moving to Tasmania to assist with care for Mr Jones - see cl1.3 of the document drawn up by Mr Thiessen, see below. But the evidence of Mr and Mrs Jones was such as to permit the conclusion that little of any specificity was said about this matter and nothing that would require Mr Thiessen to consider that some terms about their help with the maintenance of the property and about help with personal care of Mr Jones should be included in the document. 42 In summary, the retainer, on Mr Jones' evidence, was to do their wills and prepare a document acknowledging that they had received that money: "I never asked him to go any further than that." (Tp58, ll.13-15) 43 Also, Mr Jones did not regard the document as constituting the sole and exclusive agreement between the parties; it evidenced part of the deal. (Tp58, l.32) He said that the arrangements about maintaining the property and the personal care were unnecessary to place in the document. He expected them to honour these things. (Tp62, l.27) 44 The evidence of Mrs Jones reinforced the fact that the purposes of seeing Mr Thiessen were as described by Mr Jones. (See Tp128, ll.38-42) 45 Though the evidence is unclear, the note of Mr Thiessen of the conference and Mr Jones' recollection reveals that some discussion took place about a possible transfer inter vivos of the property. The stamp duty considerations appear to have been discussed. The solicitor's note included the note under Catherine's name indicating it was something she said: "We don't want to transfer title as SD on $300,000 is $9,935." 46 After seeing the four together, Mr Thiessen then saw them in two pairs to take instruction for their wills. 47 The parties returned to Mr Thiessen on 23 February. Mr Thiessen gave them the document. The document was in the following form: THIS INDENTURE is made the 21st day of February 2013 BETWEEN WILLIAM THOMAS JONES and BARBARA ANNE JONES of 538 Kellevie Road, Kellevie in Tasmania (hereinafter called W T & B A Jones) of the first part AND JOHN PAUL JONES and CATHERINE ROSETTE JONES also of 538 Kellevie Road, Kellevie in Tasmania (hereinafter called J P & C R Jones) of the second part WHEREAS: 1.1 J P & C R Jones formerly resided in Victoria in a home owned by Catherine Rosette Jones. 1.2 This home was sold in or about December 2012. 1.3 J P & C R Jones moved to Tasmania on or about the 17th day of December 2012 in order to assist in providing care for the said William Thomas Jones. 1.4 J P & C R Jones paid the sum of Three Hundred Thousand Dollars ($300,000.00) to W T & B A Jones on or about the 8th day of January 2013 to enable W T & B A Jones to construct a second dwelling on the property situated at 538 Kellevie Road aforesaid (the Property). 1.5 In consideration for this payment W T & B A Jones or the survivor of them have agreed to devise the Property to J P & C R Jones or the survivor of them upon the death of both of them. NOW THIS INDENTURE WITNESSETH 2.1 W T & B A Jones hereby acknowledge the receipt of the sum of Three Hundred Thousand Dollars ($300,000.00) from J P & C R Jones on the date and for the purpose hereinbefore referred to. 2.2 In consideration of the receipt of this payment W T & B A Jones or the survivor of them irrevocably agree or agrees as the case may be to devise the Property to J P & C R Jones or the survivor of them upon the death of both of them. 2.3 The parties hereby mutually covenant that upon the completion of the second residence hereinbefore referred to W T & B A Jones will occupy that residence to the exclusion of J P & C R Jones who will occupy the existing residence on the Property to the exclusion of W T & B A Jones. 2.4 The covenants and undertakings of the parties herein are binding upon them jointly and severally and they are binding upon their executors, personal representatives and administrators. IN WITNESS whereof the parties hereto have hereunto set their hands and seals the day and year first hereinbefore written. … 48 The terms of that document can be assessed at this point by reference to Mr Jones' evidence. All of recitals 1.1-1.5 were accurate. (I should add at this point that cl1.1 reveals that the Victorian home was owned by Catherine. The clarity of the acting on the agreement can be appreciated when one realises that funds from the sale of the daughter-in-law's property were given to the parents-in-law. This, together with the perhaps different expectations of proprietary effect of the arrangement, may explain the strength of the unpleasantness that erupted.) Clauses 2.1-2.4 were an accurate reflection of the existing agreement. Other than cl1.3 in the recital, there was no clause about maintenance of the property or care for Mr Jones, but nothing that was said to Mr Thiessen, on Mr Jones' evidence, that would have led a reasonable solicitor in Mr Thiessen's position to consider that any such matters should be included or that he should enquire about such matters. There was virtually no discussion of the matters. 49 The document appears faithfully to reflect the essential bargain of the family that had been significantly executed before the date on which instructions were given to Mr Thiessen. No one present took any objection to the document which was short, to the point and clearly expressed. Mr Thiessen did not proffer any advice about the arrangement, its wisdom or otherwise. 50 Mrs Jones read the document prepared by Mr Thiessen. In fact she said she read it carefully, looking for one particular legal aspect. She said the following: When the deed was first given to you, was it Mr Thiessen who gave it to you or someone else? ---Mr Thiessen. What did he say when he did that? --- Nothing. He just gave us the deed to read, which - read and sign, I read it, I couldn't see - we couldn't sell, so I signed it. HIS HONOUR: Sorry. Could you say that again? --- I read the deed, I - there was nowhere in there for me, as a lay person, to see that I couldn't sell the property at any time if I needed to, so I signed it. You were looking for that? --- Beg your pardon? You were looking for that? --- I was. And as I read down, I just thought, "Well, that's okay". Might I - may I assume that you were reading it fairly clearly? --- I did. And was there anything else you noticed that wasn't there that perhaps ought be there? ---Well, there could have probably been clearer explanations for us, I suppose, but I could not see that that could do any damage to us. I could not see that we could not - it did not have we could not sell our property. (Tp95 ll.7-27) 51 I have real reservations about this evidence. Having observed Mrs Jones in the witness box and assessing her as intelligent, I have little doubt that, if she were looking for any impediment on her legal right to sell the property, she would have clarified the matter with Mr Thiessen. Nevertheless, I will accept that she read the document and find that she must have been satisfied that it factually reflected what had been agreed between the parties. 52 Thereafter, steps were taken to build the new house on the property. After relevant approvals were obtained, a kit home was erected on the property during 2013, commencing in June, by Paul, a friend of Paul, and Mr Jones. The house was completed in November. Most, if not all, of the labour was done by Paul and his friend. Mr Jones did the cutting of the architraves internally. No payment was made to Paul or his friend by Mr and Mrs Jones. This contribution by Paul can be understood to be part of the implementation of the family arrangement - that not only would he and Catherine directly fund the building of the house, but his labour would be applied indirectly to build it. 53 The evidence of Mr Jones reveals that the relationship with Paul and Catherine began to change after the building of the second house. It is difficult to divine the precise reasons for the deterioration. Mr Jones gave evidence that Paul and Catherine "sort of distanced themselves" from the parents. (Tp37, ll.37-40) Paul became "almost a different person." Tension arose over Mr Jones' workshop with his tool collection which was situated near the larger house occupied by Paul and his family. Paul regarded the workshop and tools now as his. Further, it was evident from Mr Jones' evidence that he and his wife had a different perception or expectation of rights than did Paul and Catherine. Mr Jones had some objection to Paul's view that the larger home belonged to him (Paul). Mr Jones' evidence rather revealed his view that Paul and Catherine had a right or understanding to live there but everything was still owned by him and Mrs Jones. 54 This difference in conception of the significance of the arrangement was best illustrated at a meeting between Paul, Mr Jones and Mrs Jones. Paul said that the big house was his and that the workshop was also his. This upset Mrs Jones who said: "Well, you know, the way things are, that can't be. We will have to sell the property and give you back your money plus interest etcetera." At this expression of the matter, Paul "exploded". He called Mrs Jones an "evil selfish bitch" and stormed away. (See Tp38, ll.27-43) I accept that this event occurred. I would infer that Paul felt betrayed and let down by his parents after he had taken such an important step as uprooting his family and moving to Tasmania, giving the total proceeds of sale of his wife's house to his parents and spending six months with a friend building his parents' new house. 55 From this point, relations deteriorated dramatically. Paul and Catherine later put a caveat on the property. They installed CCTV on the property. They put a lock on the post box and refused to give Mr and Mrs Jones a key to it. Relations with the grandchildren also deteriorated. On one occasion, in late 2015, one grandchild verbally abused Mr Jones, who then approached the house to complain to his son about the conduct of the child. In the ensuing exchange, a fight broke out in which Paul hit his father and knocked him to the ground. The police were called. It is not entirely clear how long the deterioration to this point took. The evidence was not clear. It perhaps does not matter, but at least during 2013 and probably from early 2014 (Tp96, ll.46-47) relations were not good. 56 In explaining the later disintegration of the family relationship, Mrs Jones gave some evidence that is difficult to assess. She said Paul began to do unusual things; he was "cocky in his speech." (Tp97, ll.1-4) It is difficult to assess why the relationship broke down. It is unnecessary to be definitive about it, but it is difficult to escape the conclusion that Paul and Catherine became distrustful of their parents (particularly given the language used of Mrs Jones) in regard to the question of the property and their perceived interest in it. The evidence of the unpleasantness around the time of the placing of the caveat on the title reinforces for me the centrality of this incident and these considerations to the parties. The parents were not prepared to treat Paul and Catherine as truly having an interest in the property; and Paul and Catherine likely felt vulnerable and to a degree exploited or tricked having changed their position as they did. Attitudes hardened and bitterness emerged. 57 Mrs Jones gave some slightly more elaborate evidence about the confrontation between Paul and Mr Jones in 2015, but it is unnecessary to dwell on it. There was some violence and a fight. 58 After this incident, Mr and Mrs Jones decided to move to Queensland in November 2015. In explaining why they did this, Mr Jones said the following: And why did you decide to move to Queensland?---Well, living there was an impossibility inasmuch as I really couldn't go into my workshop because the children would come along and throw rocks at the side of the workshop and - and they - they weren't disciplined in any way. They were home every day of the week because they were homeschooled, and just not knowing what might happen next with Paul was not worth staying there. It just got too far out of hand. There was just absolutely no way in the world of a reconciliation. (Tpp42, l.43 - 43, l.2) 59 One aspect of Mrs Jones' evidence which should be noted was that she said they left the property because she felt they were in danger: And what did you decide to do as a consequence? --- I knew we had to get out because I knew we were in danger. I just couldn't believe the violence. He goes from being so lovely to this other person which I really hadn't seen. But in the three years that they were there I - it was difficult. Okay. And what did you decide to do? --- I knew we had to - I knew we had to get out for our safety. (Tp107, ll.40-46) 60 As mentioned above (at [55]), Paul and Catherine put a caveat on the property. This was done in mid-April 2015. Within a fortnight, Mr and Mrs Jones sought advice from counsel, who was asked three questions: (a) [Whether] William and Barbara can apply under the Partition Act 1869 (Tas) to partition the Property; (b) whether the Indenture is void on the ground that it constitutes a restraint on the alienability of the Property; and (c) [whether] a term could be implied into the Indenture to the effect that the parties would live in their respective houses harmoniously and cooperatively and, if they failed to do so, either party would be entitled to terminate the agreement contained in the Indenture? 61 Counsel answered "no" to each and further stated: With respect to the question posed in [(b)], by itself the requirement that the Property be devised to John [being Paul] and Catherine might be void; however, when the Indenture is considered as a whole it is enforceable whether on the basis of contract law or principles of proprietary estoppel. 62 Counsel, after discussing the principles of proprietary estoppel, said this in relation to the facts: 31. The elements of proprietary estoppel are arguably made out: John and Catherine sold their home in Victoria, moved to Tasmania, and paid $300,000 in reliance on the promise that the Property would pass to them on the death of William and Barbara and that they could reside in the second dwelling built for them on the property until William and Barbara's death. The argument against an estoppel being established is whether John and Catherine are in breach of the requirement to assist in providing care to William. 32. In my view a court is likely to decide that what had been granted to John and Catherine was a gift of the Property taking effect on death with the consequence that the Property is being held on trust by William and Barbara for John and Catherine. This was the reasoning used by the Court of Appeal in Flinn. See: paragraph 27. In Flinn the Court ordered Mary, who had acted in breach of the trust by not making provision in her will for Danny and Bronwyn, to make an immediate transfer of the farm to Danny and Bronwyn. In return Danny and Bronwyn had to support Mary for life. 33. In my view it is likely that at the very least a court would order that William and Barbara pay John and Catherine compensation equivalent to the value of the Property as at the date of the court's order together with compensation for the loss of the ability to live rent free on the Property until William and Barbara's death. It is possible that the Court would decide that John and Catherine should be entitled to the value of the Property as at William and Barbara's death. Summary 34. In my view a court is likely to decide that the Indenture is enforceable. 35. Because it is arguable that William and Mary hold the Property on trust for John and Catherine (see paragraph 32), the issue about the restriction on alienation does not arise; the court could decide that in equity the Property already belongs to John and Catherine and therefore William and Barbara have no right to sell the Property. 63 Counsel then gave his suggestions: 37. … (a) a letter be sent to John and Catherine which contains a demand that they provide "care" to William in accordance with the Indenture; and (b) if they refuse to comply with the demand a further letter be sent which states that John and Catherine have repudiated the agreement and that the repudiation is accepted by William and Barbara. … 39. An alternative solution is to offer to compensate John and Catherine for: (a) the loss of the value of the land determined now; and (b) the loss of the right to live on the Property until William and Barbara's death less a sum to pay for care for William. While the calculation of a reasonable offer will necessarily involve answering hypothetical questions a fair value could be ascertained. I assume that it is not economically feasible to pursue this option. Conclusion 40. In my view the best solution is to send the letter referred to in paragraph 37(a) for the purpose of encouraging John and Catherine to negotiate a resolution. 64 None of the steps advised by counsel has been taken. There has been no attempt to negotiate the dispute with Paul and Catherine. No request has been made of Paul and Catherine to pay their share of rates or other outgoings. No proceedings to unravel the property interests in consequence of the family fallout have been taken. No satisfactory explanation was given for these matters. Neither Mr Jones nor Mrs Jones gave any coherent explanation of why they have not taken the steps suggested by counsel, why they have not sought to agitate such rights as they may have in relation to the land or why they have not sought contribution for outgoings or why they thought that their only course was to abandon the property for Queensland.
The case against Mr Thiessen 65 The findings of fact that I have made include the fact that there were two purposes of Mr and Mrs Jones for the visit to Mr Thiessen: to prepare the wills of Mr and Mrs Jones and to prepare a document that explained why the land was being left in their wills to Paul and Catherine, and excluding Tanya. There was no communication by them to Mr Thiessen that he was being asked to give effect to the whole of an agreement. Parts of the agreement were not mentioned. There is no basis to conclude that it is necessary to imply some further aspect of the retainer to supplement the purpose of the meeting that was no doubt conveyed to him such that the retainer was to give effect to a wider agreement. It is not open to find that the parties were asking for advice as to the arrangement or for steps to execute fully the arrangement. 66 Looking at the retainer as thus limited there is no aspect of the work of Mr Thiessen that was contrary to his instructions. 67 Thus, paragraph 19 of the pleading has not been made out. At one level, that can be seen to be the end of the case. All the negligence pleaded was of the pleaded retainer. The case was fought, however, at least in address (and without objection) on the basis that even on the basis of the limited retainer Mr Thiessen was negligent. 68 The essential part of this case, which was elucidated in oral address, was that the drafting of the indenture in the form it took had the effect of making the position of Mr and Mrs Jones worse than it was without any documentation or merely with a simple letter of acknowledgment or statement as to what had happened. 69 That conclusion first requires an analysis of their position immediately prior to seeing Mr Thiessen. By what the parties had said and done there was plainly an enforceable arrangement in equity whereby Mr and Mrs Jones would be estopped from asserting that they owned the property without any interest in Paul and Catherine. The parties had reached a clear agreement that the land would be left to Paul and Catherine at least substantially in consideration of $300,000 being paid. Part of the arrangement was the provision of care for Mr Jones and maintenance of the property. It is accepted by the respondents that this was part of the consideration. (Tp141, ll.27-28) It was certainly an underpinning assumption of the whole arrangement. The fundamental question would have been what relief would have been fashioned to vindicate Paul and Catherine's equity in the property as at January 2013 if that question was relevant to posit then. The reasons of Gleeson CJ, McHugh, Gummow and Callinan JJ in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 remove, as a governing principle for relief in equitable or proprietary estoppel, the notion of the enforcement or vindication only of the "minimum equity": Giumelli at 123-125 [40]-[48]. Though, what is reasonable to assuage the detriment will always be relevant: Delaforce v Simpson-Cook [2010] NSWCA 84; 78 NSWLR 483 at 485 [3]-[4]. Here the clarity of the agreement and of the encouragement of Paul and Catherine to sell their home, and uproot their family to come to Tasmania on the basis, at least in part, that Mr and Mrs Jones would leave the property to Paul and Catherine, and their clear present entitlement to live on the property are powerful factors to support an equitable interest of Paul and Catherine in the property. That however does not mean that a Court of Equity would bind the parties together as co-owners for life irrespective of the underpinning rationale of the arrangement. Part of the consideration was that Paul would help maintain the property and look after his father. That underpinned the whole arrangement as a foundational assumption. Such an assumption was part of a wider assumption that the relationship between the parties was one of a family that could live together in a normal way. If one posited, for instance, that what, on the evidence, has transpired since 2013, had erupted by January 2013, with the breakdown of the relationship in a manner and to a degree making it impossible for the performance of the arrangement during the lives of the parties, either a constructive trust would arise or that factor would be taken into account in the formulation of relief such that the Court would divide or deal with the property equitably to vindicate fully the position of Paul and Catherine, and in a manner that would protect Mr and Mrs Jones from taking a necessary step of abandoning the property to Paul and Catherine: cf Malsbury v Malsbury [1982] 1 NSWLR 226 at 230-231. 70 A Court of Equity in examining the events and circumstances would, undoubtedly in my view, vindicate the reliance and change of position of Paul and Catherine that was made on the basis of the arrangement and encouragement reached and given in the conversations between Paul and Mrs Jones. There were the promises involved, the uprooting of a family, the commitment to sell a piece of real estate and, effectively, invest in another. These were life-changing decisions and actions, not merely the handing over of money. If, before the parties saw Mr Thiessen, there had been a falling out it would have been an inadequate and inequitable response for Mr and Mrs Jones merely to offer to refund Paul and Catherine their money back. Paul and Catherine had given up a property in exchange for a living arrangement to give them a home in Tasmania. In my view, the most likely, indeed proper, response would be to give them an interest in the property conformable with their payment or at least such payment as had reduced the mortgage debt, with (in that case) a return of the balance of available funds. Mr and Mrs Jones held the title to the land. Having created the arrangement and expectations, and participated in bringing about the reliance of Paul and Catherine, they would hold their interest and ownership subject to the equities of Paul and Catherine which amounted to an equitable interest in the land conformable with the extent of relief that would be given by the Court. The parties were thus to a degree co-owners of the equitable interest in the property. But these interests now arose from, and depended upon, the whole family arrangement that had been reached. The underpinning assumptions to which I have already referred included the necessary degree of family harmony to enable the parties to live on the same property. If that broke down, it would be unthinkable that a Court of Equity would limit its remedial relief to recognising an interest in the land in Paul and Catherine and a right to live on the land, if it meant placing Mr and Mrs Jones in such an intolerable position that they had to leave the land. If circumstances were such as to make impossible the fulfilment of the whole arrangement, the only possible answer would be the holding of the land as a remedial constructive trust for sale and division in an equitable manner to vindicate as far as possible and fairly the reliance and change of position of Paul and Catherine. Just as it would be unconscionable for Mr and Mrs Jones to deny the legitimate interest of Paul and Catherine in the land based on their reliance on the agreement and encouragement, so would it be unconscionable for Paul and Catherine to assert their rights to the equitable interest in the land without regard to the total breakdown of the relationship and the viability of Mr and Mrs Jones to remain proximate to them. Thus, as Deane J said in Muschinski v Dodds [1985] HCA 78; 160 CLR 583 at 623, speaking of a different factual circumstance: The collapse of the commercial venture and the failure of the personal relationship jointly combined to lead to a situation in which each party is entitled to insist upon realization of the asset, repayment of her or his contribution and distribution of any surplus. In these circumstances, the appropriate order to give effect to the rights and obligations of the parties is an order declaring that the Picton property is held by them upon constructive trust. 71 The applicants' counsel conceded (Tp163, ll.16-20) that the steps that had occurred prior to seeing Mr Thiessen on the execution of the deed created equitable interests in the property for the benefit of Paul and Catherine and that what they were or how they are characterised probably doesn't matter. 72 Has the position of Mr and Mrs Jones been made any worse by the work of Mr Thiessen? In my view, it has not. It was submitted that the indenture contained a covenant to leave the property in the wills, that there were no circumstances that would lead to the avoidance of that provision and thus that the Joneses were bound and remained bound to do so, with the consequential obligation never to dispose of the property. Reliance was placed on Equuscorp Pty Ltd v Glengallan Investments [2004] HCA 55; 218 CLR 471 at 483 [33] in the reasons of the Court. But the indenture here was not the whole agreement. Mr Jones was clear on that. On the evidence he was correct in that regard. It is not a question of setting aside the obligation in the indenture. It is a question of assessing the effect of that obligation in the totality of the family arrangement that has broken down. If, as the Joneses say, it has become impossible for them to remain on the property with their son and his family then the whole arrangement involving the leaving of the property to Paul and Catherine, the joint living of all on the property for their lives, the care for Mr Jones and the maintenance of the property becomes impossible of performance. The arrangement was one in which each held his or her rights in equity on the assumption of the possibility of the performance of the whole arrangement which included, as an obvious and central factor, the parties being able to live on the property. Failing that assumption the court would impose a constructive trust over the land in a division that fairly and equitably reflected the parties' contributions just as it would have done so prior to the signing of the indenture. 73 Another way of examining the position of Mr Thiessen, accepting the limited nature of the retainer, would be to say that non-negligent practice demanded that Mr Thiessen, upon hearing the instructions and the expression of his (limited) retainer, require the parties to explain to him fully the nature and details of all the arrangement and to advise on the wisdom (or not) of the arrangement without a mechanism for unravelling the arrangement should the parties fall out. I will come later to the question whether his professional responsibilities required that. For now, I will assume that they did. 74 If this had been raised by him, it is unclear what would have happened. If separate advice was to be taken over the proper way to protect themselves from the consequences of any falling out, some considerable expense by both Paul and Catherine, and Mr and Mrs Jones, would have been required. If Mr and Mrs Jones had sought to end the arrangement by simply giving the money back, one might well expect Catherine and Paul to have reacted in the way that they did later or, at least, to stand on their rights and seek vindication for what they saw as their interest in the land. As I said above, in my view a Court would have granted them relief accordingly. 75 Alternatively, the parties may well have pressed ahead with the arrangement. That is the more likely result. They were a happy family who wanted to enter their arrangement and the later breakdown was unforeseeable to them. No clause would have been likely to have been capable of being drafted with any precision for the future other than one that the parties would agree to a fair and equitable division of the property according to their contributions if they fell out. That outcome is essentially what a court would do now. 76 Thus, I do not see how the Joneses have been disadvantaged by the drafting and execution of the indenture. They can seek to have the court dispose of the property held in trust by them, given the impossibility of the performance of the arrangements binding in equity. 77 In fairness to the late Mr Thiessen, I should say something about whether he was negligent, on the assumption of the narrower retainer to which I have referred. 78 The circumstances in which a solicitor may be found to fall below what is professionally expected of him or her will be governed by what he or she has been retained to do. But the content of the execution of that retainer may raise issues or questions which cannot be seen as separate from the retainer, but which could well lead to danger for the client, strictly unrelated to the terms of the retainer. The duty raised by the retainer may go to saying or doing something, for instance, so to alert the client to the retainer. In David v David [2009] NSWCA 8 at [76] I said the following (with the agreement of Hodgson JA and Handley AJA at [104] and [105] respectively): Some reliance was placed on Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 in argument. In Kowalczuk v Accom Finance Pty Limited [2008] NSWCA 343 at [267]-[294] Campbell JA undertook a detailed analysis of the precedential status of Waimond in particular after Heydon v NRMA Ltd [2000] NSWCA 374; 51 NSWLR 1 and Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1. It is unnecessary to repeat that analysis. It is sufficient to say that the notion that a solicitor may owe a client a "penumbral" duty that extends beyond scope of the retainer is doubtful. If, however, the solicitor during the execution of his or her retainer learns of facts which put him or her on notice that the client's interests are endangered or at risk unless further steps beyond the limits of the retainer are carried out, depending on the circumstances, the solicitor may be obliged to speak in order to bring to the attention of the client the aspect of concern and to advise of the need for further advice either from the solicitor or from a third party. 79 And see Dominic v Riz [2009] NSWCA 216, esp at [91]: The passage in David at [76] was not meant, however, to be an operative legal principle. It was intended to do no more than posit the possibility that the performance of the retainer, and what is learnt during it, may affect how the retainer is properly discharged. 80 I do not think that Mr Thiessen was called on to do any more than he did. He may or may not have considered whether it was necessary to call for wider instructions and posit the separate advice. If he had considered it, he would have been entitled to approach the matter as I have addressed it. Without his evidence and without the benefit of any expert evidence I am not prepared to conclude that he was negligent. 81 It is appropriate to say something about the particulars of the statement of claim. 82 As to particular 23(b), given the limited nature of the retainer it was not necessary to advise Mr and Mrs Jones to obtain independent advice because he was being asked to draw wills and the acknowledgment of why Paul would receive the land and the reason therefor. 83 As to particulars 23(c)-(e), the indenture did not create consequences beyond what they had already created by their conduct. 84 As to particular 23(f), there already was an equitable interest created in the property. It did not arise from the indenture. 85 As to particular 23(g), Paul and Catherine were already entitled to lodge a caveat over the property. This did not arise from the indenture. 86 As to particular 23(h), the execution of the indenture did not place any restriction on the utilisation of the property beyond that which had already arisen from the conduct they had undertaken in the form of the arrangement. 87 As to particular 23(i), it was not part of Mr Thiessen's obligations to opine upon payment of rates and taxes. In any event, to the extent that the parties had become owners in equity of the property together, questions of rates, taxes and utilities would fall to be shared between them. 88 As to particular 23(j), Mr Thiessen did not have to advise that the pre-exisiting agreement was unenforceable, because it was not. 89 As to particular 23(k), the failure to draft an indenture that had a process for dispute resolution or a mechanism to be relieved of the obligations if the relationship broke down, or a mechanism to be relieved of the obligations if, for any other reason, they needed to sell the property or use it as security, was not negligent. Mr and Mrs Jones had already created enforceable rights and interests in Paul and Catherine. Any mechanism to withdraw from the arrangement would have been required to recognise those rights and interests that they had created and any dispute resolution mechanism would have been, as I have already identified, no different to what the Court would do. 90 As to the assertion that there was required to be placed in the deed a specific obligation for Paul and Catherine to care for and maintain Mr Jones and to maintain the property, the breach of which would allow for termination of the agreement, this misconceives the nature of the arrangement constructed. This was not a contract. This was a family arrangement under which the conduct of Mr and Mrs Jones contributed to the equitable interest arising in Paul and Catherine. The foundation of that was comprised of the assumptions of care and maintenance which were, in turn, based on the assumption of a workable family harmony. There was no negligence in failing to construct some clause that could only be vague in its terms and which was otherwise represented in the arrangement. 91 In all the circumstances, the application should be dismissed with costs. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.
Jones
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