Decision
61 There is some serious conflict in the evidence, which could suggest that some witness or witnesses must be giving deliberately false evidence. However, in the result I am not satisfied that any witness gave deliberately false evidence, though I consider some witnesses to have been less reliable than others.
62 As regards the plaintiff, in my opinion he gave evidence very much influenced by what he saw as his own rights and interests, with little appreciation of the rights and interests of other persons. For example, although in oral evidence he stated that the deceased had said that Christine paid off "The Falls", in two places where this was dealt with in his affidavit evidence, he expressed the statement so as to give the impression that "The Falls" was purchased and paid for by the deceased. Next, there was the suggestion in his evidence that the deceased dealt fairly between himself and his sister Beverley, because his sister got the benefit of the property "Jackie Keytes"; whereas in fact his sister only received $480.00, and the plaintiff was really unable to justify any belief to the contrary, except by reference to a vaguely remembered statement by the deceased. Thirdly, there is the plaintiff's failure to recognise that Christine, by reason of a 20 year marriage to the deceased, working in partnership with him over that time, and working with him to raise their child, was entitled in fairness to something more than just to keep the property she had paid for. I would not adopt Mr. Lindsay's submission that I should not accept the plaintiff's evidence unless corroborated; but his very strong partiality, and lack of concern for the interests of other people involved, lead me to treat his evidence with reservations.
63 As regards the witnesses called for the plaintiff, in many cases they were dealing with events that occurred over 20 years ago, and cannot be expected to have remembered them in full detail and with complete accuracy. I considered Mr. Benson and Mr. Keating to be reasonably reliable witnesses, and in general terms I accept their evidence. I considered Mr. Pike to be too ready to make sweeping generalisations, and would treat his evidence with some reservations. I would not accept the evidence of Mr. Upston, where it conflicts with that of Christine: I do not believe that the deceased would have said that he gave "The Falls" to Christine, as asserted by Mr. Upston, and his affidavit evidence that he was introduced to the deceased on the day they participate in a shooting expedition does not sit well with his oral evidence that he had known the deceased previously. Furthermore, the plaintiff himself did not give evidence supporting Mr. Upton's alleged meeting with the deceased on the particular occasion before the shooting expedition began. I do not accept Mr. Johnston's evidence, where it conflicts with that of Christine: Mr. Johnston gave no circumstantial account of how he came to be having the conversation with Christine which he alleges.
64 As regards Christine, I consider that her evidence was to some extent coloured by her perception of her rights and interests. In my opinion, she should have frankly conceded that, for certain purposes at least, the term "Rugby" was applied to the whole property. However, in most respects, I accept her evidence. There is no particular reason to question the evidence of other witnesses for the defendant: for the most part, they were not in a position to deny the principal allegations of the plaintiff.
65 In my opinion, the deceased did represent to the plaintiff that the plaintiff would inherit Rugby; and in my opinion, what was conveyed was that the plaintiff would inherit at least a substantial part of the property which the deceased was then farming as a unit. I accept that, for some purposes at least, the deceased did use the name Rugby for the whole property; and I accept that the deceased worked his whole farming property essentially as one enterprise, and that he required the plaintiff to work in all parts of this property.
66 In my opinion, the deceased also said words to the effect that the plaintiff would have to work in order to receive the property, without wages, and do what the deceased required, and to make payments from his own money for outside workers where this was required.
67 I also accept that the plaintiff did significant work, in all parts of the farming property, between 1968 and 1977. I am unable to reach any satisfactory view as to how valuable this work was, but it was a significant contribution to the working of the property. In my opinion also, the plaintiff's compliance with requirements of the deceased did significantly affect his life.
68 Before proceeding further to consider the estoppel claim, it is pertinent to record that this is not a claim based on an enforceable promise, that is, a contract by the deceased. No such contract is alleged in the Statement of Claim, and the plaintiff's Counsel at the outset of the hearing expressly stated that the plaintiff's claim was not based on contract. In any event, it is plain that a claim on contract could not have succeeded. Quite apart from the absence of writing, the conversations alleged by the plaintiff could not have given rise to a contract, for a number of reasons, notably the lack of certainty as to the terms and associated lack of manifest intention to create legal relations. In particular, there was no certainty as to the consideration to be provided by the plaintiff: the plaintiff had to carry out the deceased's instructions concerning the property, but to what extent and for how long was left completely uncertain. Furthermore, there was no certainty as to what land was included, even accepting, as I have, that in the relevant conversations, the deceased was using the name Rugby as a generic name for his farm property. In particular, there was not in my opinion certainty as to whether this included land in the town, some of which was used for shearing, or whether it included every piece of land which the deceased might acquire. There was also no certainty as to what was to happen in the event of a change of circumstances, such as financial need or remarriage.
69 Had the consideration to be provided by the plaintiff been certain, and had an intention to create legal relations been established, then it could well be that uncertainty as to what land was included, and as to what was to happen in the event of a change of circumstances, could have been removed by construing the contract. However, in the circumstances, this lack of clarity confirms that no contract was made.
70 These considerations relate to one aspect of the estoppel claim. There are authoritative statements to the effect that representations, in order to found an estoppel, have to be clearer than would be sufficient to establish a contract, because, if the intention to create contractual legal relations is established, it is necessary and appropriate for the Court to resolve any uncertainties by a process of construction: see Legione at 435-7. And of course, as noted in Watson v. Foxman at 319, there is a real problem for Courts being satisfied as to the precise terms of conversations taking place very many years ago.
71 Despite these considerations, as noted earlier, I am satisfied that in about 1968 the deceased did say something to the plaintiff to the effect that he would leave Rugby to the plaintiff, and that he did not thereby mean or convey to the plaintiff that this was just the limited area actually left to the plaintiff, but rather substantially the whole of his farm property; and that the also said something to the effect that this was conditional on the plaintiff carrying out his wishes in respect of the property.
72 However, I am not satisfied that the statements were such as could reasonably have been understood to mean that the deceased would leave the whole of his property to the plaintiff, no matter what circumstances might ensue. I do not think whatever the deceased said could reasonably have been understood as meaning that the deceased would leave land to the plaintiff to the extent that he would thereby entirely disinherit the plaintiff's sister, would not sell parts of the property if required by economic necessity, would not incur any other moral obligations, for example by remarrying and having further children, and/or would entirely disregard those other moral obligations.
73 I am satisfied that the plaintiff did act on the basis of his understanding of what the deceased said: as mentioned earlier, I am satisfied that he did work on all parts of the property, particularly in the 1970s, and did pay others to work on the property. As indicated earlier, I cannot quantify the work, nor can I quantify amounts paid to other persons, although it appears that these amounts were not very large sums of money. I am satisfied that this did substantially affect the plaintiff's life. It is not possible for me to say that, but for the deceased's representations and the plaintiff's reliance on it, the plaintiff would have pursued tertiary education: decisions about education involve many considerations, and the plaintiff's evidence about the details of the tertiary education which he allegedly gave up is scanty. In my opinion, the deceased's requirement that the plaintiff work on the property was a factor in his not pursuing tertiary education, but how much of a factor I am unable to say.
74 It is clear in my opinion that the deceased did intend the plaintiff to act on the basis of the deceased's representations and requirements. However, I have noted the lack of clarity as to precisely what the plaintiff had to do to satisfy the deceased's requirements, and I accept evidence given by the defendants' witnesses to the effect that the deceased expressed dissatisfaction in relation to the plaintiff's activities.
75 In those circumstances, there is a real question as to whether what the deceased left the plaintiff fell so far short of what the deceased should in conscience have left him, having regard to the plaintiff's expectations, reliance, detriment, and benefit to the deceased, that the Court should impose a constructive trust. When one adds to this the circumstance that the deceased did, over the last 20 years of his life, incur very substantial new moral obligations by reason of his marriage and further child, I find myself unable to say that what the deceased did was unconscionable.
76 Many of the considerations relevant to the plaintiff's constructive trust claim are also relevant to the Family Provision Act claim. However, the constructive trust claim might have succeeded without the plaintiff proving that he needed the benefit which he claimed, whereas the Family Provision Act requires that the plaintiff establish that he was left without adequate provision for his proper maintenance. On the other hand, the constructive trust claim could have succeeded only if I had been satisfied that what the deceased did was unconscionable; while the requirement for the purposes of the Family Provision Act that the plaintiff be left without adequate provision for proper maintenance does not require any finding that the deceased acted unconscionably. In that latter respect, the requirements of the Family Provision Act are easier to satisfy.
77 Having regard to the history that I have outlined, and the needs of the plaintiff at the present time, as set out earlier, I am satisfied that the plaintiff has been left, as at the present time, without adequate provision for his proper maintenance, notwithstanding the provision made during the deceased's lifetime (principally, the gift of the land in Majors Creek) and the gift to him in the will of land to the value of about $240,000.00. Even that provision would fall far short of paying the debts which the plaintiff and his wife presently have. The plaintiff has a physical and mental disability, and is not in employment, but in receipt of a pension. He and his wife have three relatively young children. Furthermore, the factors referred to above indicate that he has a strong moral claim against the estate. The estate was quite a large one, and the deceased left a house, plus land and other assets to the value of about $530,000.00, to his widow, who has since remarried.
78 Leaving aside any question of extension of time and the need to designate estate as notional estate, I consider that a case for provision under the Act is made out. I do not think a case is made out for interfering with any of the gifts, other than the gift to Christine. Leaving to one side for the moment the effect which the costs of these proceedings would have on the estate, and assuming that the whole of the property left to the plaintiff and Christine is available for provision to the plaintiff, I would consider that the proper provision to be made in favour of the plaintiff would be a sum of $100,000.00, provided out of the share of the estate passing to Christine. However, it appears that the estate is incurring about $100,000.00 costs in relation to these proceedings, and although the plaintiff has failed in respect of one aspect of the proceedings, it may be that the estate will be left bearing some of the costs, and may be ordered to pay some of the plaintiff's costs. I will leave for further consideration whether considerations relating to costs would suggest any adjustment of the figure I have identified. I would add that I do not think any costs ordered to be paid by the estate or left to be borne by the estate would come out of the shares of the estate of any persons other than the plaintiff and Christine.
79 However, before I can determine whether I should make any order under the Family Provision Act, it is necessary to consider whether to grant an extension of time under s.16, and whether to designate any of the property transferred to beneficiaries as notional estate.
80 In the written submissions, I was referred to many cases on extension of time and on "special circumstances" under s.28(5)(b). The reported cases were Warren v. Knight (1996) 40 NSWLR 390, Dare v. Furness (1998) 44 NSWLR 493 and Neal v. Knott (1994) 68 ALJR 511. The lastmentioned case relates to the equivalent Victorian statute. As mentioned earlier, Dare v. Furness dealt with "special circumstances" as well as with the question of extension of time.
81 Unreported cases referred to included Massie v. Laundy, Young, J., 7/2/86, Bemrose v. Bemrose, Master Windeyer, 11/8/89, Basto v. Basto, Hodgson, J., 8/9/89, De Winter v. Johnstone, Court of Appeal, 23/8/95, Bearns v. Bearns-Hayes, Young, J., 6/5/97, Jones v. Public Trustee, Young, J., 27/5/98, Simpson v. Grattan, Young, J., 14/10/98, and Jelaca v. Jelaca (2000) NSWSC 869. The question of "special circumstances" was dealt with in Bemrose, Bearns and Jelaca.
82 In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s.16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s.16 of the Act, which, in the absence of consent, precludes an extension being granted unless "sufficient cause is shown for the application not having been made within" the prescribed period.
83 The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like "sufficient in all the circumstances to justify the granting of an extension of time".
84 In this case, in my opinion the plaintiff had a strong moral claim and a strong case generally, as I have already considered. In my opinion, there would be little prejudice to the relevant defendant, that is Christine, resulting from late commencement of proceedings: I do not think her marriage can be regarded as significant prejudice in this respect, nor do I think the relatively small amounts spent on the property would amount to substantial prejudice. There appears to be no relevant unconscionable conduct by either side. The explanation given by the plaintiff, essentially mistake and inadvertence, is not a powerful one. However, what the plaintiff says essentially is that he focused on his other claim, which in the circumstances was not an unreasonable thing for him to do, and he claims not to have adverted to the different time limit for the bringing of Family Provision Act proceedings. I accept his evidence on this matter, and in all the circumstances, I think sufficient cause within s.16 is shown. Provided an order can be made, which in turn requires an order about notional estate, I think a case is made out for extending time.
85 The requirement of "special circumstances" has been considered a more difficult hurdle than s.16: see Bearns. Section 28 itself gives some indication of the types of circumstances that may count as special circumstances, circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff. It was submitted for the plaintiff that his mental disability would provide special circumstances: however, as submitted by the defendants, that was not put forward at the hearing as a matter constituting special circumstances, and I do not think any significant weight can be given to it. However, I do not think that special circumstances are limited to the types of circumstances suggested by s.28 itself or circumstances closely analogous to them: for example, in my opinion, a very significant change of circumstances, from circumstances where there was little point in a Family Provision Act application to circumstances where the plaintiff had extreme need and consequently a strong case, could amount to "special circumstances".
86 In this case, the plaintiff had an arguable case for a constructive trust, in which the plaintiff established that he did act to his substantial detriment, and to the substantial benefit of the deceased, in reliance on a representation by the deceased that he would leave the plaintiff substantially the whole of his farm property. That case failed essentially because, particularly having regard to other strong moral obligations to which the deceased became subject over the last 20 years of his life, I was not satisfied that it was unconscionable for the deceased to leave the plaintiff only about one-quarter of that property. In the constructive trust case, the Court could not simply do what it considered the reasonable thing: the Court could impose a constructive trust only if it considered the deceased's conduct to be unconscionable.
87 Under the Family Provision Act, there is in some respects a lower barrier. Having regard to the circumstances mentioned above, and the plaintiff's need, I considered that the plaintiff was left without adequate provision for proper maintenance, and that the appropriate order would be something like $100,000.00, leaving out at this stage any question of diminution of the estate through costs. The plaintiff fell foul of the time limit under the Family Provision Act, because he focused on the constructive trust case, and did not appreciate there was a different time limit for the Family Provision Act case. Having regard, in addition to the other matters considered on the extension of time, to the reasonableness of the plaintiff's constructive trust claim (brought within time), the basis on which it failed, and the availability of an alternative remedy on much the same facts under the Family Provision Act, I consider that there are in this case special circumstances which satisfy the requirement of s.28(5)(d) of the Family Provision Act.
88 Turning then to the other matters to be considered under ss.27 and 28 of the Act, I do of course have regard to the matters in s.27(1)(a) and (1)(b), and s.27(2)(a) and (c). I find s.27(2)(d) a little difficult to understand: it appears to be directed at the benefit that might have been received by the deceased or the estate or the recipient of the property in question, had the relevant transaction not taken place. So understood, I take that matter into account as well. Turning to s.28(1), I am satisfied that the estate is insufficient to allow the making of the provision that I think should be made for the plaintiff. What I would propose to do is to designate as notional estate so much of the property which passed to Christine as is necessary to allow the making of the provision that I propose, essentially (leaving aside questions of costs) $100,000.00 in favour of the plaintiff.
89 For those reasons, I propose to dismiss the plaintiff's claim based on constructive trust, to make an appropriate order designating some of the property passed to Christine as notional estate, and make an order under the Family Provision Act in favour of the plaintiff. Before I finalise the amount of that order, I will need to have submissions as to costs and as to the effect that any costs order I make will have on the amount available to be divided in substance between the plaintiff and Christine.