Kelly v Kelly

Facts as to Land 6The land, the subject of the cross claim now comprises three properties known as Devon Point, Starrs and Wyoming. Devon Point is a small property of about 50 acres. The homestead from which all properties were operated is on Devon Point. Starrs is a property of about 800 acres adjacent to Devon Point. Wyoming consists of three blocks known in the family as Wyoming, Wyoming North and Upper Cleveland. These properties do not adjoin Starrs or Devon Point, being separated by land belonging to relatives not interested in these proceedings. 7Starrs was, until his death on 4 June 1990, owned by Robert Joseph Kelly the father of Richard Kelly. Richard was, at the time of his death on 5 August 1988 the owner of Devon Point and the whole of the Wyoming land. Richard Kelly married Christina Ann Kelly the third defendant and fourth cross-defendant (known as Ann) in 1964. There were six children of the marriage, namely: Robert George Kelly born 3 March 1966, first defendant and cross-claimant (Robert); Aaron Wayne Kelly born 28 April 1968, the second defendant and third cross-defendant (Aaron); Julianne Marie Hayne born 20 January 1970 (Julianne); Nicholas Isaac Kelly born 15 June 1971, the first plaintiff and first cross-defendant (Nicholas); Quentin Xavier Kelly born 26 May 1973 (Quentin); Serena Therese Kelly born 14 May 1982 (Serena). 8Some time prior to his death, Richard formed a company, Devon Point Pastoral Company Pty Ltd, the fourth defendant and fifth cross-defendant, and from that time the farming and grazing business of the family was conducted through the company on the lands including Starrs. The shareholders in the company at incorporation were Richard, Ann, Robert and Aaron each holding one share. Later on one share was issued to each of Nicholas and Quentin. 9By his will dated 2 August 1988, Richard Kelly appointed Ann, his brother Elton Robert Kelly and cousin Wilfred Joseph Kelly his executors and gave the whole of his estate to Ann. This included Devon Point and the three Wyoming properties and his interest in the company. By his will dated 16 March 1983 Robert Joseph Kelly, the father of Richard, gave Starrs to Richard and in the event of him predeceasing Robert, then to Richard's children in equal shares. As a result of this, the six children of Richard each took a one-sixth interest in Starrs as tenants in common. 10At the time of death of their father, Nicholas, Quentin and Serena were still at school, Robert was working on the family properties as was Aaron from time to time. The farming venture seems to have been successful while the wool price reserve scheme was operating, but there were financial difficulties when the scheme ended and other problems arising from continuing disputes between Robert and Nicholas, and according to Ann, bad management. 11The company had borrowed substantial sums from the National Australia Bank secured over the Devon Point and Wyoming lands and guaranteed by Ann. By 2006 the bank was threatening to enforce its securities. Ann was anxious to keep the properties in the family. Nicholas offered to purchase the Wyoming properties for $750,000 and his mother sold them to him and his wife Tracy for that amount by contract dated November 2006 which was settled in April 2007. Nicholas and Tracy borrowed $1,100,000 from the bank on the security of the land purchased and stock said to be worth about $300,000. That may indicate that the bank considered the land was worth more than $750,000 and in fact it did have a letter from an agent to that effect (the letter being admitted in evidence, but not as evidence of the value stated in it). On the other hand, Ann had two valuations or letters from agents indicating values between $800,000 and $900,000. On that basis it is accepted that the purchase price of $750,000 was at an undervalue the extent of which is not established but Ann said that $750,000 was all that Nicholas was able to pay and it was the only way that the Wyoming lands could be kept in the family. 12The purchase price of $750,000 was sufficient to discharge the company debts. The total purchase price was paid to the account of the company leaving Ann with a considerable credit there. After the sale took place, Ann came to agreements with Quentin, Julianne and Serena under which she purchased their one-sixth shares in Starrs for $105,000 each and then transferred those shares to Robert by way of gift. The transfers may have been by direction but that does not matter. The result of this is that Robert now holds four-sixth of Starrs being the one-sixth share he inherited from his grandfather and the three-sixth shares given to him by his mother. In addition he has agreed to purchase the share of Aaron. Nicholas retains his one-sixth share. 13When it became clear that the sale of Wyoming was to take place, there were serious disputes between Nicholas and Robert because Robert thought that what was happening was unfair to him. There were disputes about access to Wyoming. It is not necessary to go into this in view of the settlement of the access claims other than to say first, that Ann hoped Nicholas would give his share in Starrs to Robert, and second, that she offered to buy the one-sixth share of Nicholas from him so that she could give it to Robert, but Nicholas refused as he said it was clear Robert would then refuse access to Wyoming over the Starrs land.

Cross claim 14By his cross claim, Robert sought the following orders: (1) A declaration Nicholas holds his one-sixth share in Starrs on trust for him. (2) A declaration Nicholas and Tracy hold all of Wyoming on trust for him. (3) Orders for transfer accordingly. (4) In the alternative equitable compensation. (5) Relief against Aaron - this has been settled. (6) A declaration that Ann holds her interest in Devon Point on trust for him and an order for transfer. (7) In the alternative, equitable compensation. (8) An order that the company be wound up. 15At the hearing the claims under (2) and (3) were abandoned. The claims in respect of the Starrs and Devon Point land were maintained, as were the claims for equitable compensation and winding up. 16Robert's claims relating to land are claims of proprietary estoppel by encouragement. Thus to succeed it is necessary for Robert to establish that representations were made as to the land, that he relied on those representations, that he changed his position or acted to his detriment in reliance on the truth of the representations: Delaforce v Simpson-Cook [2010] NSWCA 84 at [21] and in England Gillet v Holt [2001] Ch 210. There are additional requirements in this case as the claim on no basis relies upon representations by Ann. The claim is not made against the executors of the will of Richard so that to succeed it will be necessary to establish any representations of Richard were adopted by Ann or that some new representations were made by Ann or Nicholas or both. So far as the claim in respect of Starrs is concerned, while I will set out the only conversations said to be relevant, it could not and was not suggested it was a representation as to future entitlements to Starrs and although this claim was maintained, I said on a number of occasions I did not understand how it could be made out. 17The cross claim is a curious document. It commences by alleging that Robert from 1982 contributed material and labour to the family properties without substantial remuneration. It does not plead any representations made by the father or grandfather. It does not plead reliance, change of position or detriment. The only basis for the claim is paragraphs 5, 6, 7, 8 and 9 of the cross claim as follows: 5. At all material times the first to fourth cross-defendants were aware that it was the intention of the cross-claimant's grandfather and the cross-claimant's father that they would bequeath one or more of the Family Properties to the cross-claimant in return for the capital and labour he contributed to improving the Family Properties. 6. At all material times, the first to fourth cross-defendants were aware that the cross-claimant understood that he would inherit or be given one or more of the Family Properties in return for his contribution to improving the Family Properties. Particulars a) In either 1989 or 1990 the cross-claimant, Nicholas, Aaron and Ann Kelly attended a meeting at which those present discussed the running of the family properties and at which Aaron Kelly said to those present words to the effect: "Robert is spending more money and making more improvements on North Wyoming than anywhere else. This is not fair as all the improvements are going on his block, so it should be that all of the blocks get the same money and improvements put on them, otherwise Robert gets all of the benefit and the rest of us get nothing." b) In 1990 or early 1991, the cross-claimant, Nicholas, Aaron and Ann Kelly had a meeting to discuss the running of the family farms and the fifth cross-defendant and at this meeting Ann Kelly said to those present, words to the effect: "It is your farm now do with it as you please, it is up to you" c) In about 1990 the cross-claimant, Nicholas, Aaron and Ann Kelly attended a meeting at which those present discussed the building of a new woolshed and at which cross-claimant said words to the effect: "I think we should build it across the road from the old shed. That is where dad had planned to build it, all of the yards are there and fencing works to this point and it will allow us all to use it when the farm is finally split up." d) At the meeting outlined in paragraph 6(c) the representation was also to be implied from the first, third and fourth cross-defendants' silence. e) In or about 1995 or 1996 the cross-claimant and Ann Kelly had a conversation whereby the cross-claimant said to Anne Kelly words to the effect: "When you do the books you will see that I have put money back into the company. This will repay my loan and help grow the farm and the business." f) In 2005 the cross-claimant had a conversation with Ann Kelly in which she said words to the effect: "If Nicholas buys Wyoming from me then I will buy out all the other owners of the Starrs Property and transfer it to you." g) In 2005 the cross-claimant, Nicholas, Aaron, Quinten, Christina, Julianne and Serena Kelly attended a meeting at which those present discussed the distribution of the Family Properties to family members, including the allocation of the Starrs Property to the cross-claimant and at which cross-claimant said words to the effect: "I do not think I should have to pay for the Starrs property in view of my work and financial contributions to improve the family properties over the years that outweigh the others." h) At the meeting outlined in paragraph 6(g) those present discussed contribution made by the cross-claimant and to which cross-claimant said words to the effect to the others present: "I have worked here for 20 plus years for nothing or very little. I have given money and machinery to the farm and the business and now Nicholas is getting everything for nothing. I was promised my share of the farm and everyone knows it and I am entitled to some of the land and as I have worked for more years and put in more blood and sweat and I have contributed more money so I should get more. Instead Nicholas is getting my inheritance and everything I worked for, for nothing." i) On the same day as the meeting, the cross-claimant had a conversation with Ann Kelly in which the cross-claimant said: "If you want to sell the Wyoming and Upper Cleveland Properties to Nicholas you will have to payout the other family members of Starrs and sign over Devon Point to me." Further particulars will be provided in evidence. 7. At all material times until at least 2005, the first to fourth cross-defendants represented that the cross-claimant would inherit or be gifted one of the Family Properties in return for his contribution to improving them. Particulars (a) At the meeting outlined in paragraph 6(g) Aaron Kelly said words to the effect to the others present: "The farm was always going to be divided whereby I got "Wyoming" and Nicholas got Cleveland, Quentin got Starrs and Devon Point and Robert got North Wyoming." (b) The representation was also to be implied from the first to fourth cross-defendants' silence. 8. In the circumstances pleaded in paragraphs 1 to 7 above, the first to fourth cross-defendants hold part or all of their interests in the Family Properties on trust for the cross-claimant. 9. In the circumstances pleaded in paragraphs 1 to 7 above, the first to fourth cross-defendants are estopped from denying the cross-claimant's equitable interests in the Family Properties. 18Apart from paragraph 5, none of these pleaded facts relate to father or grandfather. Yet the claim was not argued on the basis of new representations made by Ann but on the basis the representations were adopted by her. No representational statements were made at the 2005 meeting or a meeting at Easter 2006 which was chaotic. Any silence if there was silence did not amount to some new representational promise or encouragement upon which Robert acted. His only change of position was his later move to concentrate on Starrs, his expressed view being that if Nicholas got Wyoming, then he should get Starrs, the intention that all sons should get land apparently being overlooked.

Evidence of Representations 19There is evidence of a conversation of Robert Kelly (Senior) and Robert where his grandfather said Starrs would be given to Richard and be part of his inheritance. It is not suggested this would amount to a representation that Robert would get Starrs. In any event no claim is made against the estate of the grandfather, neither could it be as it would be far too late. 20The evidence which Robert claims of representations is contained in paragraphs 38 to 42 of his affidavit of 1 June 2011 as follows: 38. At all times during my grandfather and father's lifetimes, I understood that it was their intention that I would be given or inherit one or more of the Family Properties in return for the time, effort and money I expended to cultivate and improve them. 39. In about 1986 I inspected a property for sale with my father and uncle Bill. After inspecting the property we went to the Horton Sports club for a beer and had a conversation in which my father said: "I have 4 sons and I want to leave each of them a property. I want to get them started on the properties." 40. The above conversation was held prior to my father knowing he had cancer. 41. In about 1988 my father informed me that he had cancer and that the prognosis was not very good and shortly thereafter we held a further conversation in which he said: "In drawing up my will I'm going to give the most land to whoever works the hardest." 42. Also in 1988 I had a conversation with my father whilst we were driving, in which he said: "When your grandfather passes away I will inherit the Starrs property formally. Grandfather has given me the property already as you know but it will formally be transferred to me when he dies. I plan to distribute the properties to each of the 4 boys according to their age and the amount of work they put into the properties. You will get Wyoming North, Aaron will get Upper Cleveland, Nicholas [Kelly] will get Wyoming, Quentin will get Starrs. The woolshed on Wyoming will be for common use. Mum will get to keep Devon Point." 21There is no doubt that it was the intention of Richard that each of his sons should inherit land if all went according to plan. He was even considering purchasing additional land. All the family were aware of that intention. Robert may have thought that the hardest worker would get the most. 22Paragraph 52 of the same affidavit is as follows: 52. At all times until at least about 2005, my siblings never disputed or said to me anything to suggest that I would not inherit or be gifted one of the Family Properties in return for my contribution to improving them. In reliance on that understanding I worked on the Family Properties. This is, I think, the only evidence of reliance apart from the statement that Robert constructed irrigation works on Starrs "in the belief I was to be provided land". 23While there is some conflict in the evidence, there is no doubt that Robert, as the eldest child, worked for a longer time on the properties than did Nicholas or any of the others. He may have done more work than Nicholas although there is dispute about that. They both lived in the Devon Point home with their mother, Nicholas up to 2007, and Robert up to 2009. I infer from the evidence that Ann provided all their meals and generally looked after them, in spite of the continuing arguments between them.

Change of Position - Detriment 24Robert was working on the properties from the time he left school although he did go to work on another property for a time during which he continued to do some work on the family properties. He was working on the properties when his father died. He continued to work there for nearly 20 years after the statements of the father were made. He did not change his position in any way and he does not suggest that he would have engaged in other pursuits had the statements not been made. It is true that until the company was formed Robert received little in the way of wages but that was the same for all the family. After the company was formed ordinary but low pages were paid. The real complaint of Robert is that he did not get Wyoming North although his complaints are as to failure to obtain any land. However, as a result of his mother's generosity, he now has fourth-sixths of Starrs. His evidence was that Starrs and Wyoming North are worth much the same. It is probably likely then that the four-sixth of Starrs which he has got for no payment by him is worth at least as much as the amount of any undervalue at which Nicholas purchased Wyoming.

Were there any representations made upon which Robert could rely? 25The evidence shows that all members of the family were aware of the general intention. I do not think the conversation while driving set out in paragraph 42 of Robert's first affidavit was intended to be or thought to be more than a farming father discussing the future with a son. It was not in promissory terms. In 1988 Nicholas and Quentin were still at school. A statement saying the land would be allocated according to work done at the same time allocating property in a particular way could not, I think, be a statement which would prevent a change of mind. On any basis it depended on Starrs being available for Quentin which it was not. Mrs Kelly (Ann) gave evidence that when he became ill her husband was told by a solicitor that it would not be possible to make the distribution in accordance with the wishes expressed because he did not own Starrs. That was correct. In fact Robert in evidence said it was reasonable in those circumstances to give the whole estate to Ann. 26The proprietary claim is made against both Nicholas and Ann. Nicholas made no representations. He may have been present at some family discussions at which the intentions were discussed but he made no promises. He took title by purchase through his mother. If any representations were made by his father he did not adopt them. In any event, accepting he was a successor in title through his mother, as successor to his father, any claim against the mother by Robert would have been barred by analogy to the Limitation Act 1969 or by laches many years before this action commenced unless it could be said it arose on sale of Wyoming to Nicholas. That could hardly be the position as by then it was sale to Nicholas or an outsider. In fact the will and the death of Richard and the devise of Starrs under the will of the grandfather brought to an end any possibility of the claimed representations taking effect. The claim for equitable compensation in lieu of an interest in Wyoming fails. 27As no claim is now made for an interest in Wyoming or that part of it which was North Wyoming, it is not necessary to deal with the defence raised under s 42 of the Real Property Act 1900. It is, however, clear that Nicholas did not agree to take Wyoming subject to any interest of Robert in it. 28Ann knew her husband's wishes in so far as he wished each son to inherit land and she knew his reasons for thinking certain portions would be best suited for certain sons. Ann knew that her husband was told by his solicitor that he could not achieve his intentions by will because he did not own Starrs. It was for that reason that he left his estate to her. Ann said that she had intended to carry out the wishes of her husband and it is fair to say that she did her best under very difficult circumstances to carry them out. They were impossible to fulfil as she did not own Starrs and because of the need to repay the bank. She knew that Robert wanted North Wyoming, she accepted that he had worked hard on the properties although not necessarily harder than Nicholas, and she understood that Robert thought he was intended to be given land. Robert did not offer to buy Wyoming. I accept that it had to be sold and it was reasonable to try to keep it within the family. Ann made no promise to Robert but she did all that she could possibly be expected to do, and probably far more, to get land for Robert. In fact, as a result of her use of her own money, while Robert has not obtained a separate property, she has given him a one-half interest in Starrs, which on the evidence has much the same value as any benefit Nicholas has obtained as a result of the purchase price paid by him. To suggest that Robert is somehow entitled to an interest in Devon Point or equitable compensation in lieu is a suggestion without any possible basis. Whatever else she did, Ann did not encourage Robert to keep on working on the basis of a promise to be given all or part of Wyoming or Devon Point. In fact, it would be quite inequitable for that to happen so far as Devon Point is concerned, in view of the benefits that she has given him, not only by gift of the interests in Starrs, but by guaranteeing a debt he incurred on an agricultural seeding machine, and providing him with free care and accommodation for 20 years, and as a result of the Starrs' gift becoming subject to a pension preclusion period. 29For all these reasons the claim for interests in Starrs and Devon Point or equitable compensation in lieu must fail. There were no representational promises required for proprietary estoppel by encouragement; there was no change of position in reliance on encouragement, and there is no established detriment. It is accepted in these circumstances that an order under s 66G of the Conveyancing Act 1919 should be made in respect of Starrs. Although not in evidence, it is accepted that Robert has agreed to purchase the interest of Aaron in Starrs. Ann hoped that Nicholas might give his interest in Starrs to Robert, but that has become an unfulfilled wish. There remains the possibility that Robert will be able to purchase Starrs. It would be reasonable to provide by order that if he does so, he is required to pay to the trustees for sale only one-sixth of the purchase price plus some percentage of the trustee's fees and costs of sale, probably five-sixths of those amounts. This may require an additional order.

Company Claims 30As against the company, Robert seeks orders for inspection of books and for winding up. He is a director. There is no evidence that he has been denied access to the books and records and, according to some evidence, he has them. This claim was not pressed.

Winding Up 31In the cross claim orders for winding up are sought under s 461(1)(e), (f), (g) and (k) of the Corporations Act 2001, but in the actual pleading the claim seems to be restricted to the just and equitable ground and submissions were made on that ground. 32The company has not traded since 2006. The accounts of the company for the year ended 30 June 2007 show a deficiency of assets over liabilities of $233,426 but show a debt due to Ann of $365,290. Robert is not shown as a creditor. Nor was he shown as a creditor in the accounts from 2002 on and probably before that. If there were some debt due to him as appears to be claimed it would be statute barred. There are claims that certain property used by the company was purchased and paid for by Robert. It is admitted that Nicholas owes the company money for cattle taken by him and Robert owes the company money for cattle he has taken. However, the only creditor of substance shown is Ann who opposes liquidation as does Nicholas, and they are two out of three directors. Between them they own 50% of the shares in the company. Robert owns one share and Aaron and Quentin own one share each. 33The attitude of Quentin and Aaron to winding up is not known. The winding up application has not been advertised as it must be unless the Court were to order otherwise. I do not think that I should make that order at this stage. 34There is an alternative plan put forward in a notice of directors' meeting which was called for 18 April 2012. The notice set out proposed resolutions which would have brought about the sale of all the plant and equipment of the company, the repayment of the debt due to Ann, the accounting for the company cattle taken by Nicholas and Robert and the sale of the remaining company stock and for a solicitor to be retained to act for the company to defend the winding up claim. This meeting did not proceed as Robert sought and obtained an ex parte injunction restraining it being held. Such injunction expired on the first day of the hearing and it has not been renewed, but Nicholas and Ann have undertaken not to hold any similar meeting until this judgment is delivered. 35One of the reasons why Ann opposes the winding up order being made is the fees which will be paid to the joint liquidators put forward in the event of a winding up order being made. There is substance in that objection because at the present time it appears that she would be the main one to suffer financially if a winding up order is made. While the accounts show a deficiency of assets over liabilities so that, as the company is not trading, it appears to be insolvent, that is not the clear position. The resolutions proposed to be put to a meeting envisaged the sale of all assets of the company, the calling in of debts and thereafter if the company was solvent its being put into liquidation by means of a members voluntary winding up. In light of the opposition which I think is reasonably well founded and in light of the lack of advertisement, bearing in mind that there is always a discretion as to whether an order on the just and equitable ground ought to be made, I think the appropriate course at this stage is to stand over this application to give an opportunity for a meeting to take place. There is no reason at all why discussion cannot take place between Nicholas and Robert and Ann or their representatives to determine whether any particular items of property claimed to be company property are in fact owned by one of the parties and then to agree that the balance of that equipment, together with any stock should be sold, the creditors repaid and then the company liquidated by means of a members' winding up. It should be borne in mind that it is likely that some of the items said to be owned by particular people are in fact fixtures and would go with the land. 36I propose to stand the winding up application over to a future date. The parties with their advisers should do whatever they can to avoid costs and losses which would inevitably be involved if a winding up order were made. 37It is proper to say that however unfortunate this dispute is, and however deep the antagonism between Robert and Nicholas, the action has proceeded with reasonable expedition and it has been efficiently run. 38It is necessary to deal with costs other than the costs of the unconcluded winding up application. The costs would usually follow the event but I was asked to allow any particular submissions on costs.

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