Kerry Anne Bourke v Mark Kenneth Hooper

Supreme Court of NSW|2007-12-07|Before: McDougall J, Dougall J

Background 3 Kerry, Mark, Diane and Virginia are the children of Mr Kenneth and Mrs Joyce Hooper (respectively Mr and Mrs Hooper). Mr and Mrs Hooper are deceased, as is Virginia. Mr Hooper was apparently a capable and successful businessman. His business interests included a rural enterprise known as Belvedere Park Pty Limited (BPPL). Although I have said that BPPL was a rural enterprise, its principal revenues seem to have derived from interest on loans. 4 Since about 1972 until 1980, Kerry and her former husband John Bourke (again, for convenience but without disrespect or condescension, I shall refer to him as "John") owned a property at Maralya near Sydney (the Maralya property). Mrs Hooper was also a registered proprietor of the Maralya property. There is some dispute as to why this was so. I think the likelihood is that Mr Hooper assisted Kerry and John to buy the Maralya property, and had Mrs Hooper registered as a joint proprietor to protect what he saw as his interest in the property derived through that assistance. 5 The Maralya property is said to have comprised about ten acres. Kerry and John had improved it to enable them to carry out equestrian activities on it. 6 In two transactions in 1978 and 1979, Mr Hooper acquired the 14 lots in question at Gulgong from his brother and sister-in-law, Andrew and Patricia Morrison. One transfer, said to be for ten or 11 lots, was dated 5 December 1978. The other, said to be for the disputed lots, or three of them, was dated 27 September 1979. The transferees were not Mr or Mrs Hooper but Mark, Diane and Virginia. 7 At this point it is convenient to record that Mr Hooper appears to have been a man of strong personality and accustomed to getting his own way - at least in relation to financial matters. I have the impression that when Mr Hooper wanted to do, in a particular way, something involving family members, that thing was done as he wished. 8 It is also convenient to note that Mr and Mrs Morrison's property (or part of it) was known as "Belvedere". There is a dispute as to whether that name has always applied to all 14 lots or whether it has applied only to the ten undisputed lots. Mark's case is that the disputed lots constituted a separate property known as "Wyoming" and that the other ten, undisputed, lots constituted the whole of Belvedere. 9 Mr and Mrs Morrison had used the land for grazing stock - sheep and cattle. Mr Hooper continued that use through BPPL. It does not appear that BPPL entered into any formal arrangement, let alone contract, with Mark, Diane and Virginia for this use. 10 Kerry and John have separated and there has been a settlement between them. As part of that settlement, John transferred to Kerry all his interest in the ten undisputed lots, and she is now the proprietor of those lots. 11 Virginia died in 2003, and her interest in the disputed lots accrued to Mark and Diane. When disputes arose between Kerry and Mark, Diane transferred her interest in the disputed lots to Mark for nominal consideration. Thus, Mark is the sole proprietor of the disputed lots. 12 Mr Hooper died in 1989 and Mrs Hooper died recently. 13 There are many other factual issues raised in the evidence and in the submissions. Although fascinating, they do not, for the most part, require notice, far less resolution.

The alleged oral agreement 14 In 1979 and 1980 there were discussions between Kerry, John and Mr Hooper. There is some dispute as to who initiated those discussions. It appears that Mr Hooper thought that it would be good for Diane to move to the Maralya property. Although there is some dispute as to who proposed the idea for a "swap", Mr Hooper either proposed or acceded to a suggestion, in effect, that the Maralya property be swapped for Belvedere, with no financial adjustment. I do not think that anything turns on the detail of who initiated those discussions, or who first proposed the idea of a swap. 15 Kerry and John say that they understood the reference to Belvedere to be a reference to all 14 lots - ie, to a property including the disputed lots. 16 There is a slight twist that should be mentioned. The disputed lots are four in number. However, only three of those had been comprised in the 1979 transfer: lots 11, 67 and 83. Lot 14 had been comprised in the 1978 transfer. It appears that Mr Hooper had aggregated lot 14 with the other three of the disputed lots. This was logical, since without lot 14 lot 67 had no access to either the other disputed lots or, indeed, the undisputed lots. 17 To jump ahead: Kerry was aware of the situation in relation to lot 14 by at least July 1992. In a letter of 20 July 1992 from her then solicitors to the solicitors for the executors of Mr Hooper's will, a question was raised relating to lot 14. An available (and in my view a strong) inference from that letter is that, at least in 1992, Kerry's only concern was that Belvedere did not include lot 14. The letter did not mention the other three disputed lots. 18 Kerry and John say that they asked Mr Hooper to define the land that would be swapped for the Maralya property. They say that Mr Hooper took out a map and ran his finger around a parcel of land that included not only the 14 lots but also another adjacent lot, known as lot 94, which he did not own (nor was it owned by Mark, Diane and Virginia). Kerry and John say that they raised with Mr Hooper the fact that he did not "own" lot 94, and that there was some discussion of this. 19 I have grave doubts about this evidence. Firstly, it did not appear until Kerry and John filed further affidavits shortly before the start of the hearing. Their earlier affidavits, which (as to some, but not all, in Kerry's case) were quite detailed, made no reference to this event. 20 Secondly, I have concluded that I should not accept Kerry's evidence except where it is supported by other and acceptable evidence, or is consistent with what I regard as the probabilities objectively ascertained, or is against interest. Kerry's evidence was marked by inconsistencies, including as to matters at the heart of the dispute. For example, in paragraph 13 of her detailed affidavit sworn on 8 August 2006, Kerry said that she did not recall the detail of her discussions with Mr Hooper as to the swap. But some 15 months later, in her affidavit sworn on 13 November 2007, Kerry gave what purported to be a detailed account of those discussions. Her explanation - that she had thought more about the matter - was contrived and suggests a process of reconstruction to meet the perceived needs of her case. 21 Again, in paragraph 54 of her affidavit sworn on 13 November 2007, Kerry claimed that Mr Hooper had always referred to Belvedere as "Gulgong". But elsewhere in her affidavit evidence she has him referring to it as Belvedere. 22 Further, in my assessment of the credibility to be attached to Kerry's evidence, I rely on the matters to which I refer below as to inconsistencies between Kerry's evidence in these proceedings in relation to the payment of rates and prior statements (including on oath) made by her. 23 Further, Kerry's cross-examination was heavily marked by argumentative, non-responsive and forcing answers. I have the strong impression that she was more concerned to support her case than to answer truthfully and directly. 24 Finally, much of her evidence is inconsistent with other evidence that I regard as credible. I refer to her evidence as to rates, which I deal with below. I refer again to other evidence dealing with her knowledge in 1985 of what was comprised in the transfer to her and John. Again, I deal with that evidence below. 25 In general, I thought that John sought to the best of his ability to give truthful evidence. However, it was obvious that his recollection was less than clear - hardly surprising, given that he and Kerry had separated in 1985 and gone their separate ways. In the following years, John returned only once to Belvedere, in 1991 for the wedding of his and Kerry's daughter. 26 I am not satisfied that Mr Hooper did, on request or at all, outline the 14 lots on a map as alleged by Kerry and John. 27 In this context, I note that my impression of Mr Hooper, on the evidence as a whole, is of a man who is unlikely to have made the mistake attributed to him in respect of lot 94. 28 The submissions for Kerry relied on the evidence of Mr Phillip Attard, a former neighbour of the Hooper family and a childhood friend of the Hooper children. I accept Mr Attard as a witness who sought to tell the truth to the best of his ability. But he had little real recall of detail, and his evidence in some respects was plainly wrong. Mr Attard said that Mr Hooper had said to him that there had been an agreement for a swap. But Mr Attard's evidence did not identify "Belvedere" or (as at times he said Mr Hooper called it "Gulgong"), as including the disputed lots. I do not regard his evidence as offering acceptable corroboration of the making of the alleged oral agreement. 29 The swap occurred, in a physical sense, in 1980. Kerry and John moved to Belvedere with their children. (The house on that property - situated on one of the undisputed lots - required, and had received, some renovation.) Diane moved to the Maralya property. Kerry and John say that after they moved to Belvedere they improved it and that they ran sheep and cattle on it: all 14 lots, not just ten. I am satisfied that to some extent they did so. The transfer of title 30 Kerry and John say that on a number of occasions they requested Mr Hooper to transfer to them the title to Belvedere. It would appear that discussions on this topic became heated. 31 The issue became acute in late 1984 or early 1985. Mr Hooper had apparently listed the Maralya property for sale. (At this time, it still stood in the names of Kerry, John and Mrs Hooper.) Mr Hooper agreed to procure the transfer of Belvedere - or at least, the ten undisputed lots - to Kerry and John. 32 Kerry and John say that in about May 1985, Mr Hooper came to see them at Belvedere, bringing with him a quantity of papers. He wanted them to sign the papers. They say that he put the papers before them and told them to sign, without giving them any real opportunity to examine what it was that they were to sign. They seem to suggest that the documents that they then signed included an agreement for sale and a transfer to them of the ten undisputed lots, and a deed between them and Mrs Hooper. 33 The agreement for sale was dated 1 February 1985. The transfer was dated 23 May 1985. The deed was dated 1 March 1985. 34 Kerry and John had signed a transfer of the Maralya property - to a Dr James Harold Price - a year earlier. That transfer is dated 17 May 1984, and was registered on 7 June 1984. Neither Kerry nor John offered any explanation as to why they signed this transfer before Belvedere was transferred to them. 35 Kerry's and John's signatures to the agreement for sale and the transfer to them of the undisputed lots was witnessed by a Mr Jeffrey McQuiggen, then a bank officer at Mudgee. Kerry and John suggest that Mr McQuiggen was not present when they signed those documents. Although Mr McQuiggen still lives and works in Mudgee, neither side called him to give evidence. 36 The deed to which I have referred is said to be one "Made on the first day of March one thousand nine hundred and eighty-five". The word "five" has been written in hand in substitution for the typed word "four" which has been struck through. Mr Hooper witnessed the signatures of Kerry and John to that deed. The deed charges the undisputed lots, which are described collectively as "the property Belvedere Gulgong" with the payment to Mrs Hooper of $40,000 said to be owing to her following the sale of the Maralya property. 37 Kerry and John deny that they owed Mrs Hooper any money. I think it likely that they did. I think it likely that the $40,000 represents, or reflects, in substance Mrs Hooper's one third interest in the Maralya property. 38 There is a sharp divergence between Kerry's and John's evidence as to the signing of the transfer to them of the ten lots. Kerry says that she was unaware that the transfer was for ten lots only and not all 14. John, however, says that he and Kerry did notice that the transfer did not include all 14 lots. I accept John's evidence on that point. I note that the agreement for sale describes its subject matter - the undisputed lots and no others - individually, by number. I think that Kerry's profession of ignorance is an untruth, designed to advance her cause in these proceedings. 39 In paragraphs 10 to 12 of her affidavit sworn 3 May 2006, Kerry sought to suggest that it was not until 2004 that she became aware that the 1985 transfer excluded the four disputed lots. I do not accept that. There is incontrovertible evidence that Kerry was aware of this by at least 1992 when she sought permission to erect a rural dwelling house on the undisputed lots. In a signed application to the council, Kerry stated the owners of the disputed lots as Mark, Diane and Virginia. Again, in 1992 Kerry sought to shift the burden of some outgoings on the disputed lots from herself to her siblings. 40 In truth, I think, Kerry was aware of the precise contents of the transfer not just in 1992, but at the latest by the end of 1985. 41 As I have said, I regard this aspect of Kerry's evidence as a deliberate fabrication, designed to advance her cause. It goes to two central issues. The first is her claim to have had the intention to possess the disputed lots, that intention being based on her alleged rights under the oral agreement. The second is Mark's "limitation" defence to the claim for specific performance. In my view Kerry's willingness to fabricate evidence on such central issues is a most serious factor. It is one that I have taken into account in my assessment of the credibility of her evidence.

Use of Belvedere 42 As I have said, Kerry and John used Belvedere - including the disputed lots - for rural purposes from 1980 on. They improved it by eradicating weeds and erecting or repairing fences and gates. 43 However, I find, this use was not exclusive. I think that the disputed lots were used from time to time both by BPPL grazing its stock and by Diane and Virginia grazing their horses. I reach this conclusion because I prefer the evidence of Mark and Diane (supported, to some extent, by the affidavit of Mrs Hooper) to that of Kerry and John. Both Mark and Diane struck me as witnesses who sought to tell the truth to the best of their ability. Diane in particular was not shown to have any axe to grind. It is clear that she is distressed at the dispute between her sister and brother, but she did not strike me as in any way partial. 44 Mark gave evidence of visits to the disputed lots in about 1981 and in 1994. He was accompanied by a friend, Mr David Gower (and on the earlier visit by two other friends as well). Mr Gower gave evidence, which I accept, corroborating this aspect of Mark's evidence. One might think that not much turns on this. However, Kerry denied that those visits had occurred. I do not accept that denial. The inconsistency between the persuasive evidence of Mark and Mr Gower (supported as it was by what I find to be contemporaneous photographs) and her denial is one of the inconsistencies that I have taken into account in assessing her credibility. 45 I accept that, over the years, Kerry carried out or caused to be carried out substantial works on the disputed lots. Those works included fencing and gates and earthworks. This aspect of Kerry's evidence was corroborated, as to earthworks, by Mr Allan Smith, whose evidence I accept. However, many other aspects of this part of Kerry's evidence - dealing with works on the disputed lots - were not corroborated. Consistent with what I have said, I do not accept all the detail of that evidence. 46 Thus, I find, over the years from 1980 until at least 1992 the disputed lots were used not only by Kerry (and for a time, John) but also by Mark, Diane and Virginia, and by BPPL. 47 Further, I find that either Mr Hooper or BPPL from time to time caused works to be carried out on the disputed lots and paid for those works. In this regard I prefer Mark's evidence (corroborated, as to some extent it is, by that of Mrs Hooper) to that of Kerry.

48 Finally, in this context, I find that some of the works organised and stock purchased by Kerry were paid for by Mr or Mrs Hooper or BPPL, or that if Kerry had paid she was reimbursed. Mrs Hooper gave evidence of this in her affidavit. Although of course Mrs Hooper's evidence was untested, and there is therefore a question as to its weight, this aspect of her evidence was supported by business records which she identified and annexed. I do not accept Kerry's evidence in denial. 49 In the context of use of the disputed lots there is some conflict between Mark's evidence and that of Mr Scott Inglis. Mr Inglis is a real estate agent who was retained by Mark to sell a property described as "Wyoming". It is clear that Mr Inglis understood this to be the four disputed lots. The effect of Mr Inglis' evidence is that Mark and Mrs Hooper (who was present on the inspection) knew very little about the lots or improvements on them. Mark denies this. Although I do not think that Mr Inglis was doing anything other than trying to tell the truth to the best of his ability, I prefer Mark's evidence to the extent that it is at variance. My observations of Mark, and attention to his evidence, suggest that he was well aware of the answers to the questions that Mr Inglis said he asked and would have answered those questions appropriately had they been asked. (I put the matter this way because it appeared in cross-examination that Mr Inglis' account of asking those questions may have been based on his usual practice at the time, rather than on direct recollection).

Payment of rates and outgoings 50 Kerry's evidence is that from the time she and John moved to Belvedere, they (and after the separation, she) paid rates and other similar expenses and outgoings on Belvedere - all 14 lots. Kerry says that to the extent that Mark, Diane and Virginia or BPPL paid rates or outgoings (which they did as to the disputed lots) she reimbursed them. I do not accept that evidence of reimbursement, which is contradicted by the evidence of Mark and Diane (and, to some extent, by the evidence of Mrs Hooper). 51 In November 2001, Kerry gave written information to a solicitor who was acting for Virginia in relation to a property settlement between Virginia and her then, or former, husband. Contrary to Kerry's evidence in these proceedings, that document:

(1) identifies the disputed lots as "Wyoming"; (2) states that Mr Hooper during his life time, and thereafter Mrs Hooper, paid all land protection board and shire rates on the disputed lots; and (3) states that "I have never paid any moneys towards rates...". 52 Kerry's attempts to explain away that document were entirely unconvincing. 53 Further, in an affidavit sworn on 18 January 2001 for use in the property settlement proceedings, Kerry said at paragraphs two, five, nine and ten: [2] In May 1985 John Warren Bourke and I became registered as the proprietors of the property known as "Belvedere". We purchased it as joint tenants. John was my husband at the time. [5] An adjoining property known as "Wyoming" and consisting of Lots 14, 15, 67 and 83 in the parish of Tallawang is owned by my sisters, Virginia and Diane, and my brother, Mark. This property consists of about 90 hectares. Some of this land is crown land leasehold. [9] I do not pay any of the Pasture Protection Board rates (although I have in the past), the crown land licence/lease fees, or the shire rates for "Wyoming". These expenses are paid by my mother. I have offered to my mother to pay them, but she has refused my offer. Prior to my mother paying them, my father paid them. [10] I do not pay any occupation fee to either my brother or my two sisters for my use of the land.

54 Kerry's attempts to explain away those paragraphs were unconvincing. 55 These matters go not just to the factual issue of payment of rates, but also and adversely to the credibility of Kerry's evidence. 56 I do accept that for a period of time Kerry and John, and later Kerry, paid some outgoings on all 14 lots. However, it is clear, and I find, that invoices for some outgoings in respect of the disputed lots were directed to Mark, Diane and Virginia and were paid by them, or, more likely, by BPPL. 57 In about 1992, Kerry raised with the Mudgee Rural Lands Protection Board the fact that the disputed lots had not been transferred to her but remained in the ownership of Mark, Diane and Virginia. She requested the board to send invoices to those people. After some bureaucratic fumbling and with a few false starts, it did so. 58 As I have said, I do not accept Kerry's evidence that she reimbursed Mark, Diane and Virginia or BPPL for rates and other outgoings paid by them on the disputed lots. I repeat that in my view Mark and Diane sought to tell the truth to the best of their ability. Diane was somewhat hostile and I think that this is explained by her not wanting to be caught in the middle of a bitter dispute between her brother and her surviving sister. That is entirely understandable. I accept the substance of her evidence, and of Mark's evidence.

Adverse possession 59 I turn now to what has become the principal way in which the case for Kerry was put. 60 Section 45D of the Real Property Act provides, so far as it is relevant, as follows:

45D Application for title by possession (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and: (a) the land is a whole parcel of land, (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land.

… (4) A possessory application may not be made in respect of an estate or interest in land if: (a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and (b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered, unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted.

61 In this case, the debate centres on para (b) of subsection 1. There is no question as to paragraphs (a) and (c). 62 Mr Gordon McGrath of counsel, who appeared for Kerry, relied on section 27 (2) of the Limitation Act 1969. Section 27 (2) and section 28 read as follows: 27 General … (2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.

Where the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims: (a) has been in possession of the land , and (b) while entitled to the land , is dispossessed or discontinues his or her possession, the cause of action accrues on the date of dispossession or discontinuance.

63 In Newington v Windeyer (1985) 3 NSWLR 555, McHugh JA (with whom Hope JA agreed) said at 563 to 564 that the common law principles concerning adverse possession apply to claims under section 45D. It follows that a consideration of the question posed by section 45D (1) (b) requires the Court to ask whether at common law, assuming that the land were held under old system title, the title of the "owner" would have been extinguished under an applicable statute of limitations. The test at common law inquires whether the person in possession holds in derogation of the rights of the owner without force, secrecy or permission, and with the requisite intention to possess, or to possess to the exclusion of the owner. 64 The principal submission on the section 45D claim was that Kerry's actions were consistent with the intention to possess the disputed lots (to the exclusion of her siblings) because she believed that she was entitled to ownership of those lots by reason of the alleged oral agreement. For the reasons that I have given in discussing the alleged oral agreement, I am not satisfied that such an agreement was made. Thus, this submission fails at the outset. 65 Further, for the reasons that I give below discussing the claim for specific performance, I am satisfied that Kerry knew in 1985 that ten lots only had been transferred to her. This too, I think, is inimical to the submission. 66 Mr McGrath also placed great reliance on the payment of rates. He submitted that this was a most significant factor: Shaw v Garbutt (1996) 7 BPR 14816 at 14833-18844. However, for the reasons I have given, I do not accept Kerry's evidence as to payment or reimbursement of rates. Indeed, I regard the relevant evidence - particularly as to the events of 1992 to which I have referred - as inconsistent with this submission. 67 In my view the claim under section 45D must fail. In addition to what I have said there are at least three reasons. 68 First, Kerry has not established that for any period of time she has had possession of the disputed lots to the exclusion of Mark, Diane and Virginia. For the reasons that I have given I find that Diane and Virginia in particular, and BPPL with the at least implicit permission of Mark, Diane and Virginia, continued to use the disputed lots from time to time over the years. They did so in the exercise of their rights as owners (or in BPPL's case, in the exercise of rights given to it by the owners), not by permission of Kerry. They were not dispossessed. 69 Indeed, the pattern of what I find is shared usage is consistent with what one would expect to find in a family situation. In such a situation one would not normally regard one family member's use of "shared" property as demonstrating an intention to dispossess the other family members. 70 The second reason is that Kerry's use of the disputed lots was, in my opinion, use undertaken with the implicit permission of Mark, Diane and Virginia. Again, this reflects the family situation to which I have referred. Mark, Diane and Mrs Hooper said that the shared use of the disputed lots reflected their status as, in effect, a family asset. Each used it; and the others by implication assented to that use. The findings as to payment and reimbursement of expenses that I have made support this conclusion. 71 The third and related reason derives from Kerry's notification to the Land Protection Board in about 1992. The clear - in my view inescapable - inference from this is that Kerry not only recognised the position of Mark, Diane and Virginia as owners of the disputed lots (as she did also in her application to the local council) but that she sought to take advantage of that by reducing the amount of her outgoings. That is inconsistent with a concurrent intention on her part to possess the disputed lots to the exclusion of the true owners. An attempt to assume the benefit of ownership would ordinarily carry with it a recognition of the need to assume also its burdens. 72 Further, Kerry knew that Mark, Diane and Virginia, or BPPL, were paying other outgoings (specifically council rates) on the disputed lots. (In this respect I do not accept her evidence that she herself made some of those payments, if by that she meant to suggest that she paid them from her own funds; and as I have said I reject her evidence that she reimbursed those who did make the payments.) 73 In those circumstances, I am not prepared to find that such possession, or use, as Kerry exercised over the disputed lots was exercised with any intention of displacing the rights of Mark, Dianne and Virginia as owners, or of dispossessing them. 74 I have not overlooked Kerry's claim to have fenced off the disputed lots from external land, but to have kept it open to the undisputed lots. It is correct to note that all the disputed lots have access (in three cases direct and in the other case - lot 67 - indirect) from the undisputed lots. However, the major boundary between the disputed and undisputed lots - the northern boundary of lot 15 (adjacent to lot 11) is fenced. I do not regard fencing as offering any real support to this aspect of Kerry's case. 75 Nor have I overlooked Kerry's evidence to the extent that it was corroborated (for example, by Mr Smith's evidence) or the evidence of Mrs Jean Ketchell, or of Mr Robert Crooks) of use of and improvement to the land. But allowing for that, I find, as I have said, that her use was not exclusive; that it was not undertaken with the intention to dispossess Mark, Diane and Virginia; and that they were not dispossessed. On the contrary, I find they continued to exercise their rights of possession.

Oral agreement 76 There are at least two answers to this aspect of Kerry's case. The first is that I am not satisfied that an agreement of the kind alleged by her, extending to all 14 lots, was made. In this context I refer not only to what I have said as to the alleged "map" incident. I note in addition that Mark, Diane and Mrs Hooper all said that it was Mr Hooper's intention that he and Mrs Hooper one day would retire to the disputed lots. I accept that evidence. That intention is inconsistent with any agreement of the kind alleged in so far as it is said to have extended to the disputed lots. This supports, although it is not integral to, my conclusion that the alleged agreement has not been proved. 77 Further, I think it is strongly arguable that the only agreement intended by the parties to have legal consequences - as opposed to familial obligations binding, if at all, in honour - was that created by the written agreement for sale dated 1 February 1985. That agreement related only to, and specified individually, the ten undisputed lots. I do not think that Kerry or John would have misunderstood it. It was that agreement that was completed by the transfer dated 23 May 1985. 78 The second answer to the claim for specific performance is that if there were an oral agreement of the kind alleged, extending to the disputed lots, it was breached in about May 1985 when ten lots only were transferred. Any cause of action accrued then or shortly thereafter. Any such cause of action became statute barred six years thereafter. See section 14 (1) (a) of the Limitation Act, which equity will apply by analogy in a claim for specific performance (Spry, The Principles of Equitable Remedies, Law Book Co, 7th edition 2007, at 244-245). 79 Mr McGrath submitted that the limitation point was overcome by the concept of concealed fraud or by the operation by analogy of sections 55 or 56 of the Limitation Act. The submission depends entirely on the proposition that Kerry did not know in 1985, or at any time more than six years before the commencement of these proceedings, that ten lots only had been transferred to her and John. As I have said, I accept John's evidence that he and Kerry knew when the transfer took place, or shortly after, that it comprised ten only lots. Even if that evidence were not accepted it is clear that Kerry knew by, at the latest, mid 1992 that ten lots only had been transferred. Her attempt to disavow that knowledge - which was apparent from her own documents among other sources - is another matter that I have taken into account in assessing her evidence. Since these proceedings were not commenced until 2006, the answer based on concealed fraud or sections 55 and 56 fails. Estoppel 80 There are at least two answers to Kerry's case in so far as it is based on estoppel by representation. 81 The first is that for the reasons I have given I am not satisfied that there was any representation as to the disputed lots. 82 The second is that in so far as the alleged detriment (a necessary ingredient to make good an estoppel case) is found in work done or expenditure incurred by Kerry then at least since May 1985 that work or expenditure was done or incurred with the knowledge that ten only lots had been transferred. 83 I would add also that if it arose for consideration I would not grant equitable relief (whether based on the concept of estoppel by representation or by way of specific performance) in circumstances where Kerry has not only known of the situation but has insisted since 1992 that Mark, Diane and Virginia bear outgoings on the disputed lots.

Conclusion and Orders 84 Each way in which the case was put fails. I make the following orders:

(1) order that the proceedings be dismissed with costs. (2) discharge order one made on 10 May 2006. (3) release the parties from their several undertakings given to the Court on 9 June 2006. (4) order that the exhibits remain with the papers for 28 days, and that they be dealt with thereafter in the accordance with the Rules.

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CITATION : Kerry Anne Bourke v Mark Kenneth Hooper [2007] NSWSC 1516

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