Lewis v. Lewis & Anor. [2001] NSWSC 321

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 The plaintiff is the son of Ken Lewis, who died on 1st September 1996. The deceased's estate comprised mainly land in the Braidwood district, worth about $1.1 million. By his last will dated 23rd August 1995, the deceased left land to the value of about $650,000.00 to his second wife Christine (the first defendant in these proceedings), land to the value of about $240,000.00 to the plaintiff, land to the value of about $101,000.00 to the daughter of his first marriage Beverley (the third defendant in these proceedings), land to the value of $95,000.00 to the only child of his second marriage Belinda (the second defendant in these proceedings), land to the value of $12,000.00 to his sister Lola Stinson, and land to the value of $10,000.00 to another sister. 2 In these proceedings, the plaintiff claims the benefit of a constructive trust entitling him to all of this land, apart from the last two parcels. In the alternative, the plaintiff claims provision under the Family Provision Act. The defendants have put on a cross-claim seeking orders for removal of caveats lodged by the plaintiff over their land, an enquiry as to damages, and, in the event that the plaintiff should obtain relief on the basis of a constructive trust, orders under the Family Provision Act.

OUTLINE OF FACTS 3 Some of the subject land had been owned by the deceased's parents, and for a time they had lived in a house on that land called Rugby House. It appears that they moved from that house in about 1930, and as I understand it went to live in the nearby township of Majors Creek. At the time of this move, the deceased was about two years old. 4 In 1949, the deceased married his first wife Beryl. Their daughter Beverley was born on 20th July 1950, and their son Garry was born on 11th July 1954. 5 In 1954, the deceased's mother gave to the deceased some property owned by her. This included property called "Selection", being Portions 44 and 45 of the Parish of Bendoura; and also Portions 83, 91 and 92 of the same Parish. Of this land, Portions 44 and 45 were ultimately left by the deceased to Beverley, and the other three portions were part of the property left to the plaintiff. 6 In 1961, the deceased's father transferred to the deceased Portions 15, 36, 37, 68, 97 and 124 of the Parish of Bendoura and Portion 179 in the Parish of Elrington for a recorded consideration of £3,113. It seems likely that special leases over Portions 98, 102 and 140 were also transferred at around that time. Rugby House was built on Portion 36. According to the defendants, this land (apart from Portion 179, said to be called "Shorters"), plus Portions 83, 91 and 92 referred to above, comprised the property known as "Rugby"; and this is the land left by the deceased to the plaintiff. 7 In 1962, the deceased acquired further land in the Parish of Elrington from one "Sling" Cleaver for a recorded consideration of £5,000.00. One part of this land became known as "Slings", and this was left by the deceased ultimately to Belinda. Another part later became known as "Airstrip". Another became part of areas known either as "Poppins" or "Whittakers". Further areas in the Parish of Elrington were apparently acquired during the 1960s, some from a Mr. Flack and some apparently by adverse possession. 8 Prior to 1965, the deceased and his family lived at a residence in Majors Creek township called "Hillston". In 1965, the deceased became the licensee of the Majors Creek hotel, a property apparently owned by his father, and went to live there. It seems that the deceased's parents lived at "Hillston" after this date. 9 In March 1968, the deceased's first wife died. Shortly before her death, according to the plaintiff, she said to him that the deceased was to leave "Rugby" to him, and his father agreed with this. 10 In July 1968, Beverley married her first husband John Collins. According to the plaintiff, at this time the deceased said he was giving land called "Jackie Keytes" to Beverley, but that "Rugby" would be his. In fact, the property "Jackie Keytes" was purchased for a recorded price of $1,500.00 in February 1968, and sold in August 1971 for a recorded price of $3,500.00. Beverley's evidence was that she was given $480.00 in 1969 towards the purchase of a property at Araluen known as "The Swamp", but nothing else at around this time. No submission was made that I should not accept this evidence as true. 11 According to the plaintiff, the deceased made representations to him in 1968 and 1969 to the effect that he was to receive "Rugby" on the basis that he was expected to work on it without wages, do what his father required, pay expenses out of his own money where necessary, and so on. The plaintiff says that he understood his father to be referring to the whole of his farming property. In fact, according to the plaintiff, as early as 1969, he paid about $750.00 of his own money for work done by a bulldozer clearing areas on the part of the deceased's property known as "The Common". The plaintiff says that in fact, by about 1970, he was working the property himself, because the deceased was working full-time on the hotel and other ventures. According to the plaintiff, because of his father's requirements and his reliance on his father's representations, he gave up other opportunities in order to retain his entitlement to "Rugby", including the opportunity to go to New England University after he completed his HSC in 1972. 12 In 1972, the deceased's father died, and the hotel was sold. Also in that year, Beverley's first husband died. 13 In 1973, farm employment was scarce, and the plaintiff says that his father told him to look for non-farm work. The plaintiff had some employment away from the farm, and then in May 1974 he joined the ACT Police Force. 14 In November 1974, Beverley married her second husband Bruce Feehan. 15 In 1976, Christine, who was then about 21, commenced teaching at Braidwood School. 16 On 18th December 1977, the plaintiff had a severe motor cycle accident, which has caused him to be somewhat disabled mentally and physically. He was in fact medically retired from the ACT Police Force in 1979. On 27th December 1977, the deceased married Christine, his second wife. 17 The plaintiff says he was doing substantial work on the property right up to the end of 1977; and that thereafter he worked on the property irregularly. 18 In 1978, Christine purchased the property "The Falls" for $8,100.00. This property was paid off by her over a couple of years. 19 In 1979, the deceased sold two lots in Majors Creek township. The plaintiff says he complained to the deceased about this, and that he subsequently had a solicitor Richard Refshauge write to the deceased asserting the plaintiff's rights to the whole of "Rugby". 20 On 10th December 1980, Belinda was born to the deceased and Christine. 21 In about 1981, the plaintiff married his wife Ellen; and they have since had three children. 22 In about 1983, the plaintiff with some help worked on the property for some time clearing wattle. 23 In 1993, the deceased transferred certain land in Majors Creek to the plaintiff and his wife as a gift. The land value of that property has been assessed at $25,000.00 as at the date of death. Since then, the plaintiff and his wife have built a house on that land. 24 As noted earlier, the deceased's will was made on 23rd August 1995, and the deceased died on 1st September 1996. 25 At around this time, the plaintiff and his wife moved to their house in Majors Creek. It appears that they had a house in Canberra, which was rented to his wife's sister at $600.00 per month. 26 In 1997, the plaintiff consulted solicitors in relation to what he claimed was a breach of contract by the deceased. The solicitor suggested an application under the Family Provision Act, but the plaintiff said that this was not relevant. 27 On 2nd June 1997, probate of the deceased's will was granted to Christine and Beverley, the executors named in the will. During 1998, the real estate of the deceased was transferred to his beneficiaries, other than the plaintiff, who did not sign a transmission application for his share under the will. 28 In April 1998, Christine re-married. 29 The plaintiff lodged caveats over the claimed land in January 1999, and these proceedings were commenced on 30th March 1999.

FINANCIAL CIRCUMSTANCES 30 It is convenient at this stage to outline the financial circumstances of the parties, which are not significantly in issue. 31 The plaintiff and his wife own a house in Canberra worth about $152,000.00, and a house in Majors Creek worth about $145,000.00. They own motor vehicles and farm equipment worth about $48,000.00, and furniture worth about $15,000.00. They have other assets worth about $2,000.00, and ten head of cattle. The plaintiff's wife has a superannuation entitlement worth about $109,000.00. The plaintiff's entitlement under the deceased's will is worth about $240,000.00. 32 The plaintiff and his wife owe $233,000.00 on mortgages over their houses, $57,000.00 in personal loans, and about $20,000.00 on credit cards. The plaintiff's liability to his solicitor for the costs of these proceedings is estimated at about $55,000.00. 33 The plaintiff and his wife have three children, aged 15, 11 and 8. Their living expenses amount to about $1,400.00 per week, including about $800.00 for loan repayments. The plaintiff is in receipt of a pension of about $385.00 per week net, and his wife earns about $618.00 per week net as an officer in the ACT Police Force. She has had a recent salary increase over and above this of about $1,000.00 per annum gross. They receive rent of about $150.00 per week. 34 Christine owns the property "The Falls" worth about $55,000.00. She and her second husband have partnership assets worth about $80,000.00. The property left to her by the deceased's will is worth about $650,000.00. Her husband owns a house worth about $75,000.00, subject to a mortgage of $60,000.00: this house is rented for about $100.00 per week, and mortgage payments amount to about $140.00 per week. Christine has a superannuation entitlement worth about $13,000.00, and her husband has such an entitlement worth about $6,300.00. 35 Christine works as a teacher on a casual basis. In the last financial year she earned around $30,000.00. There is less work available now, and over the last eight months she has earned about $2,000.00 per month gross. Her husband is employed with a local supplies company, earning $41,000.00 gross, about $28,200.00 per annum net. Christine has some health problems outlined in her affidavit, which have meant that she has not been able to take out insurance for death or disability. 36 Christine has a dependent daughter, Belinda, who has no significant assets apart from the property worth about $95,000.00 left to her in the will. Belinda wishes to go to university this year. 37 The defendants' costs in these proceedings are estimated at about $100,000.00. 38 Beverley owns properties at Araluen worth about $220,000.00. She has a half interest along with her husband in a motel at Holbrook, her half interest being estimated at $207,500.00. She owns vehicles to the value of about $11,000.00. There is a mortgage over the motel, and Beverley's half share of that mortgage amounts to about $101,000.00. 39 Beverley and her husband are trying, at present unsuccessfully, to sell the motel. Her husband has health problems set out in her affidavit. 40 Beverley's taxable income in the year ended June 2000 was $14,342.00, and her husband's was $10,340.00. They have two children, aged 21 and 23, who still need some financial assistance.

ISSUES 41 There are significant credit and factual issues, notably concerning exactly what was conveyed by the deceased to the plaintiff by whatever it was that the deceased said to him, particularly around 1968 and 1969. This involves some consideration of what the deceased meant by using the word "Rugby". Another significant factual issue concerns what the plaintiff actually did: what action to his detriment did he take, and what benefit did he confer on the deceased and on the property by his actions? These issues involve some consideration as to the credibility of witnesses, especially the plaintiff and Christine. 42 Next, there is the issue as to whether the factual circumstances give rise to any entitlement to relief in the plaintiff, by way of estoppel giving rise to a constructive trust. 43 Thirdly, there are questions under the Family Provision Act. These questions involve not merely the usual question of whether the plaintiff was left without adequate provision for his proper maintenance, and what if any order the Court should make, but also questions arising from the circumstance that the plaintiff requires an extension of time under s.16 of the Act, and arising from the circumstance that the property in question had already been transferred to beneficiaries at the time of commencement of the proceedings. 44 Sections 6(4), 16, 24, 27 and 28 of the Family Provision Act are in the following terms: 6. In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... (4) A reference in this Act to the estate of a deceased person is, where any property which was in the estate of the deceased person at the time of death has been distributed, a reference to so much of the property in the estate as has not been distributed.

16(1) In this section, "prescribed period" in respect of an application in relation to a deceased person, means: (a) where the Court has, in an order made under section 17, specified a period in relation to the application---that period, or (b) in any other case - the period of 18 months after the death of the deceased person. (2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow. (3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) sufficient cause is shown for the application not having been made within that period. (4) The Court may make an order under subsection (2) with respect to an application in relation to a deceased person whether or not: (a) the prescribed period in respect of the application in relation to the deceased person has expired, (b) the application for the order under that subsection was made before that period expired, or (c) the application in relation to the deceased person has been made. (5) Notwithstanding subsections (2) and (3), where administration has been granted in respect of a person whose date of death is so uncertain as to make it impossible to apply subsections (2) and (3) with respect to an application in relation to the person, the Court may, whether or not the application in relation to the person has been made, by order, allow the application in relation to the person to be made within such period as it thinks reasonable and such an order has effect according to its tenor.

24. On an application in relation to a deceased person, if the Court: (a) is satisfied that an order for provision ought to be made on the application, and (b) finds that, as a result of a distribution from the estate of the deceased person, property became held by a person (whether or not as trustee) or subject to a trust, the Court may, subject to sections 27 and 28, make an order designating as notional estate of the deceased person such property as it may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed.

27.(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property, (b) the substantial justice and merits involved in making or refusing to make the order, and (c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person, (b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration, (c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be, (d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income, and (e) any other matter which it considers relevant in the circumstances.

28(1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied: (a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or (b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate. (2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made. (3) The exercise by the Court of its power under section 23, 24 or 25 to make an order designating as notional estate of a deceased person property held by, or on trust for, a person does not limit or restrict any further exercise by the Court of that power. (4) Where, as a result of a prescribed transaction or a distribution made from the estate of a deceased person, property becomes held by a person as a trustee only, the Court shall not make an order under section 23, 24 or 25 by reason of the prescribed transaction or distribution in respect of any property (other than the trust property) held by, or on trust for, the person. (5) On an application in relation to a deceased person, being an application: (a) made pursuant to an order under section 16 allowing the application to be made, or (b) for an order under section 8 for additional provision, the Court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied: (c) that: (i) the property was the subject of the prescribed transaction or distribution, (ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity, during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property.

SUBMISSIONS 45 Mr. Brender for the plaintiff submitted that the evidence established that the representations set out in the Statement of Claim were made and were relied on by the plaintiff. The plaintiff's evidence in this regard was corroborated by a number of witnesses, who confirmed among other things that the plaintiff worked on the property over a long period of time, paid them for work they did on the property, and spent considerable time on the property, fulfilling the wishes of his father. These witnesses confirmed that the deceased stated to a number of people that the property was to go to the plaintiff in return for the contributions the plaintiff was making. Mr. Johnston gave evidence that the deceased said that the property would go to Garry, and also gave evidence that Christine told him she was aware of this. Mr. Pike gave evidence that the deceased told him that Garry had to pay Mr. Pike for work Mr. Pike was doing, because the property was to go to Garry. Mr. Benson gave evidence to similar effect: that the deceased had said that Garry would pay wages, and that he was to get the property as long as he did what he was told. Evidence to similar effect was given by Messrs. Keating, McDonald and Stevenson. 46 Mr. Brender submitted that the steps the plaintiff took in reliance on the deceased's representations changed his life. Up until 1977, he devoted himself to the property and to his father. Witnesses who suggested that he did not work on the property were not there and had little opportunity to see what he did. He gave up the opportunity to have tertiary education. The plaintiff's evidence that the deceased had stated words to the effect that the plaintiff could go to university, but if he did he would lose any entitlement to inherit "Rugby", should be accepted: such a statement was the sort of thing that might have been expected of the deceased, since the deceased made a similar statement to Christine in relation to a proposal by her to travel overseas. After his accident and the deceased's marriage to Christine, the plaintiff did less work, although there was still some substantial work which he did do. 47 As to the meaning of the deceased's representation, Mr. Brender submitted that there was ample evidence of the deceased referring to the whole of his farming property as "Rugby". As further properties were acquired, they were integrated into the one property, and all were run together. The plaintiff was required to work on all the properties. 48 In the circumstances, Mr. Brender submitted, it was far from sufficient recognition of the deceased's representations, the plaintiff's reliance on them, the detriment suffered by the plaintiff and the benefit given to the deceased, that the plaintiff should have been left substantially uncleared property which could not be farmed: only 130 acres was semi-cleared, it was only partly fenced, there were no services, and it could not support more than ten cattle. 49 Mr. Brender referred me to Giumelli v. Giumelli (1999) 196 CLR 101; and Glouftsis v. Glouftsis (1987) 44 SASR 298. 50 Turning to the Family Provision Act, Mr. Brender referred to Walker v. Walker, Young, J, 17/5/96, and submitted that no special principles applied to adult sons, and that the plaintiff's claim in this case was strengthened because he had made sacrifices to help build up the deceased's estate, and because of his physical and mental infirmity. His circumstances showed significant need that was not met by the amount of the gift to him. On the other hand, the needs of Christine and Mrs. Feehan were far less. 51 Mr. Brender submitted that an extension of time should be granted. The plaintiff had taken the view that his claim was essentially on the basis of his father's promise and his reliance on it, rather than under the Family Provision Act, and also that he had believed there was a six year limitation applicable to everything. No prejudice was shown by an extension of time. In any event, in relation to most of the property, it was still in the hands of executors, even though it had been transferred to the individual executors as beneficiaries. 52 Mr. Lindsay SC submitted that the deceased had identified the property known as "Rugby" in a map drawn by him and shown to Beverley shortly before his death. The deceased's sister Lola Stinson gave evidence that she had lived at Rugby House and that her father had identified the property "Rugby" to her as being essentially the property ultimately given to the plaintiff under the deceased's will. He submitted that it was common ground that there was no signage on any gates, no road-side mailbox, and that there was no document identifying "Rugby" as comprising any more than the property given by the deceased to the plaintiff. Even the plaintiff's evidence, Mr. Lindsay submitted, was inconsistent with "Rugby" covering the whole of the deceased's properties. He referred to statements in paragraphs 4 and 5 of the plaintiff's affidavit of 23rd March 1999, a reference in the affidavit of 4th August 1999 to land "Mum once owned"; and to paragraphs 2 and 5 of the plaintiff's affidavit of 4th January 2001. 53 Mr. Lindsay submitted that there needed to be certainty as to what was represented in order to support a case for estoppel: see Legione v. Hateley (1983) 152 CLR 406 at 435-7. He referred to the difficulties for a court in being sufficiently certain about words used many years before, as discussed in Watson v. Foxman (1995) 49 NSWLR 315 at 319. He pointed out that the problems were similar in relation to allegations of contracts with deceased persons of this general nature: see Horton v. Jones (1935) 53 CLR 475. It was necessary to be cautious before finding an intention to create legal relations in a family situation. 54 Mr. Lindsay submitted that any belief of the plaintiff that he would be entitled to the whole of the property no matter what circumstances might ensue, would be wholly unreasonable. 55 In any event, Mr. Lindsay submitted that I should not be satisfied that the plaintiff made a significant sacrifice or a significant contribution to the deceased's estate. He submitted that, in particular, I should not be satisfied that the plaintiff lost the opportunity for further education through reliance on any representation by the deceased. There was no evidence that the plaintiff had actually been accepted by the University of New England, the plaintiff has no recollection as to what course he was contemplating, and in fact, as confirmed by Mr. Keating, the plaintiff always wanted to be either a policeman or in the Army. 56 Mr. Lindsay submitted that, putting the plaintiff's case at its highest, it would not justify the imposition of a constructive trust. In all the circumstances, it could not be said that what the deceased did was unconscionable, or that the minimum equity to do justice to the plaintiff, having regard to such representations and reliance as the Court may find, would deliver to the plaintiff any more than what was left to him in the will: see Gillett v. Holt (2000) 3 WLR 815. 57 As regards the Family Provision Act application, Mr. Lindsay pointed out that the proceedings were instituted over a year after the eighteen month limit prescribed by s.16 of the Family Provision Act had expired. Furthermore, the proceedings were commenced after the distribution of estate property, apart from that left to the plaintiff. Accordingly, the plaintiff could only succeed if the Court made an order designating some of the distributed property to be notional estate pursuant to s.24 of the Act. Although under previous legislation, Easterbrook v. Young (1977) 136 CLR 308 had held that the estate of a deceased person, out of which provision could be made, could extend to estate that had been distributed, s.6(4) of the Family Provision Act makes it clear that this is not the case under that Act. Accordingly, it would be necessary for the plaintiff to satisfy the requirements of ss.27 and 28 of the Act, in particular s.28(5)(d) requiring proof of "special circumstances". 58 Mr. Lindsay submitted that the plaintiff had not made out a case for an extension of time: he had been advised concerning the Family Provision Act, and urged to take action, as long ago as June 1997. Furthermore, he submitted, there was prejudice to the estate, and to Christine in particular, from the late application: Christine had remarried during the period that elapsed between the expiry of time for bringing the application and the commencement of these proceedings, and also had spent money on improving the property. Mr. Lindsay referred me to a recent discussion of the principles applicable to extension of time in Pitkin v. Henderson (2001) NSWSC 207, and also to the consideration of "special circumstances" in s.28(5)(d) in Dare v. Furness (1997) 44 NSWLR 493 at 504f. 59 On the merits of the application, Mr. Lindsay pointed to the strong moral claims of all the beneficiaries, and of Christine in particular. She was the deceased's wife of 20 years, had raised his daughter and now had responsibility for her, and had given up the tenure and superannuation rights of a full-time teacher in order to support the deceased as his wife. 60 At the close of oral submissions, I indicated to Counsel that I would be assisted by further submissions in relation to the requirement of "sufficient cause" in s.16 of the Act, and the requirement of "special circumstances" in s.28(5)(d) of the Act; and written submissions on those matters were subsequently provided. I will leave those written submissions with the papers.

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.

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