Kauter v Kauter

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3292/03 - PAUL BERNARD KAUTER & ORS v MARK ANTHONY KAUTER & ANOR 6064/02 - MARK ANTHONY KAUTER v PAUL BERNARD KAUTER & ORS JUDGMENT 1 HIS HONOUR: These reasons are in respect of two suits heard together between members of the Kauter family. 2 The late Nona Ellen died on 22 June 2001, aged 74. Mrs Kauter and her husband had six children, namely, Paul, now aged 55; Helen, 54; Maureen, 51; Mark, 49; Gerard, 47; and Stephen, 39. Because the males, at least, have the same surname, I will refer to people by their first names. 3 The present litigation concerns Mark, the plaintiff in proceedings 6064/02 (to which I will refer as "the first suit") and Paul and Stephen, who are the defendants in the first suit and the plaintiffs in 3292/03 ("the second suit"). Additional defendants are Maitland Ready Mixed Concrete Pty Limited, a company that is controlled by Paul and Stephen and Mrs Kauter's sister, Shirley Margaret Cavanagh, who is a co-executor of Mrs Kauter's estate with Paul and Stephen and who has appeared in person and submitted to any orders that the Court might make, apart from costs. 4 In the first suit, Mark asks for a construction of Mrs Kauter's will to remove Paul and Stephen as executors and to have a property devised to him in clause 5 of the will transferred to him beneficially. Mr Marshall, of counsel, appeared for Mark in the litigation. 5 The will was admitted to probate on 29 January 2002. Clause 3 of the will is as follows: "I GIVE my shares in Maitland Ready Mixed Concrete Pty Limited as follows:- (a) as to one-half of those shares to my son PAUL BERNARD KAUTER; and (b) as to the remaining one-half of those shares to my son STEPHEN JAMES KAUTER."

Clause 5: I GIVE my property at 441 Windemere Road, Windemere known as "Warraba" being the whole of the lands in Certificate of Title Folio Identifiers 1/724785 1/910288 and 670/1015411 together with furniture, furnishings and household chattels contained in the residence and any of my cattle grazing upon the property to my son MARK ANTHONY KAUTER subject to him giving written acknowledgement to my Executors of his obligations to honour the existing Licence Agreement for sand extraction with Maitland Ready Mixed Concrete Pty Limited prior to the transmission of the property to him." 6 Clause 8 of the will gives the residue of the estate to the three other children of the testatrix. 7 I now turn to the second suit commenced by Paul and Stephen and Maitland Ready Mixed Concrete Pty Limited, for whom Mr Haffenden and Mr Benson of counsel appeared. 8 At the date of her death, Mrs Kauter was the registered proprietor of Warraba and also owned all the shares in Maitland Ready Mixed Concrete Pty Limited. On 9 May 2001, the testatrix executed a deed of licence. This licence was an exclusive licence to Maitland Ready Mixed Concrete Pty Limited to dig and extract such sand as may be found in and beneath Warraba with a frontage to the Hunter River (being that part of Warraba then being used as a sand extraction area) provided that the licence was limited to extraction of sand at a rate no greater than the rate of extraction of sand which has occurred on Warraba to the date of the agreement. Paul and Stephen say that that meant up to 49,000 thousand tonnes per year. 9 The licence was for 20 years from 1 July 2001 at a yearly fee of $20,000 for the first two years. Then there was to be a review of the licence fee by reference to current market value on 1 July 2003, 2008, 2013 and 2018. 10 The recital to the deed showed that the licensor relied on her existing use rights. Clause 6 of the deed noted that no requisition, or the like, was to be made because the licensor could not produce authority to extract the sand and gravel and soil and clause 7 provided that if sand extraction was denied by the actions of the Maitland City Council, New South Wales Public Works, or by any other statutory authority, pursuant to any legislation, then the licence would be at an end. 11 The second statement of claim pleads that licence and then says that Mark failed to provide the acknowledgment prior to 8 October 2002, or at all. The pleading then says that, during 2002, Mark acted contrary to the May 2001 agreement in various respects, which I will detail later in these reasons. 12 On 8 October 2002, a document which has now been acknowledged to be sufficient as to form, was signed and delivered by Mark, which acknowledged that he was bound by the obligations in the licence. Paul and Stephen say that that purported acknowledgment is invalid or, alternatively, that it has been retracted. 13 The plaintiffs in the second suit seek three groups of orders. The first group claims that the May licence agreement contains certain implied terms so that Maitland Ready Mixed Concrete Pty Limited was entitled to carry out its business of sand and gravel extraction in the same way as it had been carried on immediately prior to Mrs Kauter's death without hindrance from Mark. 14 The statement of claim sets outs five implied conditions, which the plaintiffs say apply and these can be summarised as follows, the figures before the statement referring to the relevant paragraph of the second statement of claim:

35. There is a right to screen and stockpile sand and gravel and soil on Warraba.

65. That the company is entitled to enter Warraba to repair and maintain access roads.

74. That the registered proprietor of Warraba for the time being is bound to join in any application to a government authority to regularise the activities of the company as they existed in May 2001.

75. That such registered proprietor would not seek to restrain such activities. 15 Of these, 52 and 65 appear, clearly, to be within the usual ancillary rights of a licensee and indeed, Mr Marshall did not contend otherwise. The others are said to be implied because of representations made by the testatrix during her life, or because of the principle that one is not permitted to derogate from the grant. I will deal with these submissions later on. 16 In the second group, the plaintiffs also claim, order 2, a declaration that the company is entitled to the consent of the registered proprietor of Warraba for its proposed applications to the Maitland City Council to "regularise" its activities. This is based on the problem that there is a gap between the existing consent and the activities which are, in fact, being carried on. 17 The third group comprise ancillary orders, including orders that Mark join in applications to regularise the activities of the company. 18 The background circumstances are rather unusual. It would appear that, up until a relatively recent time, local councils did not regulate this sort of industry too closely, but because of SEPP 37, actions were taken by councils to grant consent covering existing industries. There was expert evidence called to indicate that, so long as the industry had been carried on in the past, there was not too much difficulty in obtaining council approval, as opposed to new industries being started up. 19 However, the fact remains that there is a discrepancy between the ambit of the consent which has been granted by the council and what is in fact happening. There is also the problem as to stockpiling and screening and what order 2 seeks is that the executors at this stage and if necessary, Mark, in the future, if he becomes the registered proprietor, join in and support the consents which are being sought. 20 Why this is particularly important is that the evidence shows that by application that was filed in the Land and Environment Court on 10 April 2003, Mark has commenced proceedings for declarations that the company is not entitled to extract soil, or gravel from the land, an order restraining the company from conducting any extractive industry on the land, and ancillary orders. 21 Order 2 is sought to "regularise" the position as well as to neutralize those proceedings, though of course, the matters which are raised are also said to be evidence as to why Mark's alleged acknowledgment was not genuine. 22 There is little relevant factual dispute between the parties. There was a considerable amount of dispute between the parties on peripheral issues, such as whether Mark mooned Paul, or whether Paul saw Mark changing into overalls, but it is completely unnecessary in deciding the present proceedings to make detailed findings of fact on such matters. 23 I would think it is sufficient for the parties for me to say that I was not at all impressed with Mark's evidence. I thought Mr Haffenden's summation to Mark that he was either pretending to be very stupid, or was actually a bit stupid, was very close to the mark. His evidence gave me very little confidence in its acceptability. 24 There was also the problem that Mark appeared to be saying that the reason why he mounted the Land and Environment Court proceedings was because the company was acting illegally and he drew that to the attention of the Land and Environment Court, so that that court could take whatever action it thought appropriate. 25 In cross examination, it was quite clear that, in many respects, Mark had no respect for the law whatsoever. It was also quite clear to me that, in the light of the other conduct, Mark's action in the Land and Environment Court was a deliberate ploy to put pressure on Stephen and Paul to come to terms with the amended licence agreement that Mark wanted to have put in place or, alternatively, just to frustrate their endeavours. 26 There is little doubt that, literally, Mark has provided the document referred to in the testatrix's will on 8 October 2002. However, there is also little doubt that Mark has continually sought to impose further terms on the company, which run contrary to the mutual obligations in the May 2001 deed. For instance, Mark insisted on a royalty when the May 2001 agreement specifically said that no royalty was payable. Mark's answer to this is that in June 2001, a further draft agreement was drawn up by Mr John Bowe who, at the time, was the family solicitor. 27 Mark says that what Paul and Stephen call his "demands" were merely further negotiations to see if the June 2001 draft could be brought to finality. Whether that is so or not is, to my mind, completely irrelevant. Mark was required by the will to acknowledge in writing his obligation to honour the existing licence agreement. 28 As Mr Marshall pointed out, that does not stop Mark or, indeed, Paul and Stephen, negotiating for some other agreement; it does not stop them reaching the point where some other agreement mutually puts an end to the May 2001 licence agreement. However, if the negotiations take the form of indicating that the May 2001 agreement really does not exist and that he is only prepared to deal with the sand extraction on a particular basis, then the mere fact that he says he is negotiating from a June 2001 draft is quite irrelevant. 29 Although it makes little difference to the ultimate result of this case, in my view, the evidence shows that Mark went beyond merely negotiating an agreement which consensually would replace the existing licence agreement. The parties agree that in clause 5 of the will the existing licence agreement means the May 2001 licence agreement. 30 The purpose of the will is plain. Mrs Kauter gave Warraba to Mark, she gave the shares in the company to Paul and Stephen and she endeavoured to work out a scheme whereby both could enjoy their property. She, or her solicitor, must have realized that there was an argument that the licence agreement did not run with the land and accordingly, might not be the subject of a caveat and accordingly, there needed to be a recognition by Mark that he was bound by it. 31 Of course, the method chosen by the testatrix was not completely waterproof. Moreover, it has some very bizarre features. For instance, the acknowledgment is not to be to the company but, rather, to the executors. Secondly, whilst the acknowledgment is to be to the executors, it is to observe the obligations under the existing licence agreement to which Mark was never to become a party. 32 One would have thought that the acknowledgment either should be to the company or, alternatively, there would have to be a novation of the licence agreement, but neither of those matters are referred to in clause 5 of the will. 33 Moreover, as this is a licence coupled with a grant, the better view, probably, is that if the licence agreement creates a profit a prendre, a profit a prendre is an interest in land which is the subject of a caveat and which, indeed, can be registered on the title by the appropriate instrument. 34 Mr Marshall took me to the dictionary meaning of "acknowledgment" and to judicial exposition of the word (see eg Re Cotton Crops Pty Ltd [1986] 2 Qd R 328). Usually "acknowledge" has the overtones of recognizing a pre-existing state of affairs. In this will, however, it obviously has an additional flavour of agreeing to become bound by the May 2001 licence agreement. 35 Accordingly, the literal meaning of clause 5 is that Mark is to get the property, subject to him giving the acknowledgment and then the acknowledgment operates, not by way of contract but, probably, in equity, so that obligations fall upon Mark which, if he dishonours them, will lead to an injunction or to equitable compensation. 36 Although the principle of De Mattos v Gibson (1859) 4 De G & J 276; 45 ER 108, is probably not in full force today and has, to a great degree, been superseded by the development of the principle in Tulk v Moxhay (1848) 2 Phillips 774; 41 ER 1143, it still has some work to do in the area of benefit and burden. That is, that if a person accepts a benefit and knows that there are contractual burdens, then equity will enforce those burdens against the party, notwithstanding that the party is not privy to the contract. This principle was developed by Megarry VC in Tito v Waddell (No 2) [1977] Ch 106 at 289 et seq, into what is commonly called the Ocean Island Equity. 37 Accordingly, it would seems to me that if Mark takes Warraba and gives the acknowledgment, then he is bound under the De Mattos v Gibson principle in equity to "honour" the existing licence agreement. If he does not, then injunctions or equitable compensation may follow. 38 Mr Haffenden says that the October 2002 purported acknowledgment was not a genuine acknowledgment. 39 There is no doubt that equity will often give no force whatsoever to pieces of paper which purport to declare trusts, or the like, when the Court can see that there is no real intention of meaning what the document says. There are a considerable number of cases which I summarised recently in Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 where, for tax purposes, a taxpayer keeps in his drawer a declaration of trust, but acts as if the property were his own beneficially. In such cases, it is not conclusive that the taxpayer or bankrupt, as the case may be, can produce a piece of paper which purported to be a declaration of trust. 40 In Arthur v Public Trustee (1988) 90 FLR 203, 209, Asche CJ, giving the judgment of the Northern Territory Full Supreme Court, approved the trial judge's test that, "Equity will only enforce a trust to the extent to which the intention to create a trust is clear ... . Words alone may suffice, but where those words are at odds with the donor's action proof may be lacking". (See also Kauter v Hilton (1953) 90 CLR 86). 41 Accordingly, Mr Haffenden says that, even though there is a piece of paper which, literally, complies with clause 5, if I were to find it was not genuine then it does not count at all as satisfying the condition. 42 Mr Haffenden says that the reasons why I would come to the view that it was not genuine and a mere pretence are that:

(a) there was a 15 month delay in providing it; (b) that it was preceded by various equivocal letters from Mark's solicitors, indicating that he was only prepared to provide the acknowledgment if the May 2001 licence was amended or replaced; (c) that throughout 2002, Mark made thirteen demands, set out in paragraph 15 of Mr Haffenden's submissions, to require royalties and other extensive adjustments to which he was not entitled under the May licence; (d) that he showed himself completely at odds with the May licence by, for instance, telling officers of the Department of Land and Water Conservation that the whole operation was illegal; (e) that he insisted that formal applications be made to regularise the activities on Warraba; and (f) that he made threats, such as, if the operatives of the company were misguided enough to work after dark, it may just be that a stray bullet would hit one of them between the eyes. 43 Although Mark tried to play down that remark, I am satisfied that it was said and that it was meant as a threat. 44 I consider that there is quite considerable strength in those submissions. However, I must turn my attention to whether there is any time limit in the provisions of the acknowledgment under clause 5 of the will and if so, what it is. 45 Both counsel agree that the acknowledgment must be made within a reasonable time. What is a reasonable time is a question of fact. Mr Haffenden pressed on me the decision of Wilson J in Lewis v Lohse [2003] QSC 204, where Wilson J held that a relatively short time was a reasonable time in the context of the will that was before her Honour in that case. However, that is merely one illustration of what is a reasonable time. 46 In the instant case, clause 5 of the will provides that the acknowledgment is to be given before transmission. The estate is not yet fully administered. Accordingly, the time at which Mark could demand a transfer of the property has not yet arrived. No prejudice, accordingly, is caused to the estate if there is a delay between the time of the death of the testatrix and the time of the acknowledgment, up until the estate is fully administered. 47 The present state of play with the administration is set out in paragraph 45 of Stephen's affidavit DA07, that is, that subject to the tax returns being filed and the tax paid for 2002 and 2003, payment of legal fees and certain other minor matters, the estate is almost at that stage. 48 Of course, the fact that it is not yet at this stage means that there can be no order, as originally sought by Mark, that the property be distributed to him now, nor can he complain that it has not been transferred to him before now, even though he may feel rather peeved that it would seem that the shares in the Maitland Ready Mixed Concrete company have been distributed, but not his real estate. 49 However, this morning, by amendment, he sought a declaration that, upon the estate becoming fully administered and there being sufficient assets, he was then entitled to have Warraba transferred to him. Today at 2 o'clock Mark voluntarily tendered to the Court an undertaking to the Court in the terms of the acknowledgment. 50 No matter what might be said about the previous document of October 2002, a written undertaking to the Court containing the acknowledgment must be taken as genuine because, as was doubtless explained to Mark, any breach of the undertaking may well lead to imprisonment. 51 The undertaking, which is PX09 is: "I, Mark Anthony Kauter, of "Warraba", 441 Windemere Road, Windemere, in the State of New South Wales undertake to the Court to honour the obligations of my late mother, Nona Ellen Kauter, under the deed between her and Maitland Ready Mixed Concrete Pty Ltd dated 9 May 2001 including any terms implied in that Deed." 52 It seems to me that, even though I have some doubts about the document of 8 October 2002, that PX09 is a sufficient undertaking and in time. 53 This then avoids a nice question that would otherwise arise as to the nature of the condition in clause 5 of the will. Mr Haffenden argued that it was a true condition precedent, so that if there was no compliance, there was a forfeiture of Mark's interest, which then fell into the residuary estate. 54 There is some support for that argument in cases such as Re Gardiner [1971] 2 NSWLR 494. However, there are also cases the other way. There is no gift over and there is the general rule which is set out in Jacobs, Law of Trusts in Australia, 6th ed (Butterworths, Sydney 1997) para 232, that equity tends to construe these conditions as conditions not involving a forfeiture, but which can be policed by specific performance, injunction, or equitable compensation. 55 The prime example, though far more clearly a condition of non-forfeiture than the present one, is provided in Gill v Gill (1921) 21 SR (NSW) 400. Another example is found in Re Boning [1997] 2 Qd R 12. However, as I say, in the circumstances, that nice question does not arise. 56 Thus, in the first suit, although the plaintiff is not entitled to the original order sought in the statement of claim, in my view, he is entitled to the declaration in the amended prayers granted this morning. 57 Mark also sought, in this first suit, orders removing Paul and Stephen as executors. It is much harder to get the Court to order the removal of an executor than it is of a trustee, the principal reason being that the appointment of an executor is a right given to the testatrix and she is entitled to choose the person she has trust in to administer her estate. Even if there is a conflict of interest then, at least up to a certain extent, the fruits of that conflict of interest are not sufficient to cause the Court to have the executor stand aside: Hordern v Hordern [1910] AC 465. 58 I do not consider that the evidence gets anywhere near enough to justify the order for removal and I decline to make it. 59 In the second suit, as I have said, three classes of order are sought. 60 As to the first set of orders, that is, the alleged implied terms, as I have indicated, there is no contest that the implied terms in paragraphs 52 and 65 of the statement of claim should be made. 61 As to 35, Mr Haffenden says that the term that there could be stockpiling and screening should be implied from:

(a) what the testatrix said, as set out in the affidavits when the agreement was being contemplated; (b) from the general tenor of the deed, which indicated that the business then being carried on would be the same business as was going to be carried on by the company; (c) that the surrounding circumstances in which the contract was made showed that all parties knew the type of business that was being carried on and that, accordingly, when using the general words in the deed, that there was full liberty to dig and extract sand, soil and gravel; they also meant the ancillary activities. 62 As to (a), I admitted statements made by the testatrix for the limited purpose under s 136 of the Evidence Act 1995, for the fact that the statements were made, but not for their truth. However, the statements were made before the deed was executed and although they might be representations and although they might constitute misleading conduct under s 52 of the Trade Practices Act 1974 (Com) or s 41 of the Fair Trading Act 1987, they are not terms of the contract and merely because the representations were made will not make them terms of the contract. 63 As to the other two arguments, there was no evidence put before me that there was any trade usage of the words "full liberty to dig and extract", or that those words had any particular sense between the parties. In my view, implied term 35 has not been made out. 64 So far as 75 and 74 are concerned, (74 being a stronger version of the same thing as is in 75), there is no doubt at all as to the general proposition that parties to an agreement and, I would have thought, also persons who are bound in equity as if they were parties to an agreement, are bound to co-operate together so as to give business efficacy to the contract that they have made. 65 There is a plethora of authority to that effect, most of which is summarised in Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Ltd (1979) 144 CLR 596. However, there are, as that case shows, limitations and the implied duty to co-operate can not contradict an express term of the contract, nor does it entitle a party to the performance of non-essential obligations which are not fundamental to the contract and in all cases, it is necessary to construe the contract. 66 In my view there is some implied condition in this contract that all parties would co-operate together to see that the contract was carried out. It was acknowledged in clause 6 of the licence, as I have mentioned, that the testatrix had no consent for the extractive industry and she was relying on existing use rights. 67 It would seem to me that the parties must have contemplated that they would need to approach the council or other appropriate authority to get rights and that clause 7 then showed that if it was denied, then the licence was to be at an end. 68 Although, in most cases, the duty to co-operate will merely entail a duty not to frustrate, there are some situations, such as considered by Yeldham J in Gilmore v Brien (1980) 1 BPR 9629 at 9636 to 9637, where the term involves some positive acts as well. 69 In my view, the term 75 is within the ambit of the co-operation principle. I think, also, it goes a little further than that and that there is also an obligation on the estate and it follows the equitable obligation that will, in due course, fix on Mark, to join in applications. 70 However, I think the term as phrased in 74 is too wide, that is, that they would join in any application to a government authority, but with some limits, I consider that 74 is an appropriate implied term. 71 Accordingly, 52, 65, 75 and modified 74 are, in my view, implied terms of the May licence agreement, but not 35. 72 The second order involves the obligations of the estate. Mrs Cavanagh, trying to be independent, who is the third executor, declined to sign on behalf of the estate, the necessary application to the council. Paul and Stephen then did not submit it, considering that, at least ethically, they should not do that, if she took that view. 73 As a general rule, executors, as opposed to trustees, act by majority; see the authorities referred to in Geddes and Others, Wills Probate and Administration Law in New South Wales (Law Book Company, Sydney, 1996) p 406. There are some limitations on that principle as set out in s 153 of the Conveyancing Act 1919 with respect to the sale of land, but these are not applicable here. The law is discussed by the High Court in Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177. 74 Where executors have doubts as to whether they should proceed because of a disagreement between them, they may approach the Court. If they do approach the Court, then the test is that the Court must see clearly that the proposed activity is necessary and beneficial to the estate: Sneesby v Thorne (1855) 7 De GM & G 399; 44 ER 156. 75 The duty of executors is to carry out the contracts of their testatrix: Ahmed Angullia Bin Hadjee Mohamed Salleh Angullia v Estate and Trust Agencies (1927) Limited [1938] 3 All ER 106. It seems to me that the same principle applies where, if the executors do not act in a particular way, they could be liable in damages, or the estate can be liable in damages under the Fair Trading Act. 76 Accordingly, the test laid down in Sneesby's case is, I think, made out and Paul, Stephen and the company are entitled to an order such as order 2. 77 The third set of the ancillary orders, I think, fall to be made, or not made, according to what I have already said. 78 It seems to me that, having delivered these reasons, I should merely summarise the effect of them and then stand the matter over for short minutes to be brought in and also for the questions of costs to be considered. 79 What I have decided, in effect, is that Mark is not presently entitled to have the property transferred to him. However, he is entitled to have the property transferred to him as soon as the estate is fully administered, which is to happen without undue delay. 80 Mark is not entitled to remove Paul and Stephen as executors, but Paul and Stephen and the company are entitled to have the estate and, when Mark becomes the registered proprietor of Warraba, Mark keep to the terms of the May 2001 licence agreement, as long as it is in force, including the implied terms, which I have noted. This does not include the alleged implied term about stockpiling and screening. 81 I should note that, so far as stockpiling is concerned, there has been no actual attempt made to date by the testatrix, the estate, or Mark, to prohibit stockpiling, other than the application to the Land and Environment Court. Were such an application to be made, there may very well be a defence of acquiescence, following from the principles laid down by Lord Wensleydale in Archbold v Scully (1861) 9 HLC 360, 383; 11 ER 769, 778, by Griffiths CJ in Cashman v 7 North Golden Gate Mining Co (1897) 7 QLJ 152, 153 to 154, and by Deane J in Orr v Ford (1989) 157 CLR 316, 337 to 338. 82 In so far as the proceedings in the Land and Environment Court are concerned, there may need to be some discussion when the short minutes are brought in as to whether Mark should be restrained from further prosecuting those proceedings. 83 In general, it would seem from what I have said above that there should be such an order, yet there are parts of the proceedings, such as the question of stockpiling and screening, which may be a matter before that court but, on the other hand, it might be thought that because of the Anshun principle, they should have been dealt with, to a degree, in this suit, in which case, the defence of acquiescence might have been pleaded. 84 Accordingly, I merely publish these reasons and stand the matter over for a short period so that short minutes can be brought in. I will formally stand the proceedings over to 26 August 2003 at 9.30 am. This date may be altered by arrangement with my Associate on or before 22 August and should be altered if the debate in respect of the short minutes is likely to take more than ten minutes.

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