defendant. Judgment for the first and second defendants. Victoria's claims were dismissed, and she was ordered to pay both defendants' costs. The Court refused the application for indemnity costs concerning...
Key principles
The alleged family discussion did not establish an express trust because, on the Court's findings, it described a shared plan and future expectations rather than an immediately...
A common intention constructive trust was not established where Bob and Josephine alone funded the acquisition of the property and construction of the houses, and the later...
Proprietary estoppel was not established because the Court found no promise that Victoria would receive an interest in the property and no relevant detriment on the overall...
Indemnity costs were not ordered for the abandoned claim against Robray, having regard to the circumstances of its abandonment, the absence of an inquiry into whether it had...
Issues before the court
Whether Bob and Josephine declared an express trust, or made an enforceable commitment concerning a half interest in the Greendale property.
Plain English Summary
The Court found that the family had made a plan to live and work together at Greendale, but that plan was not an enforceable promise giving Victoria ownership. Bob and Josephine paid for the property and the houses. The $40,000 paid by Robert was not a contribution to the purchase. The Court also found no relevant detriment supporting proprietary estoppel. Victoria's claims were dismissed, and she was ordered to pay the defendants' costs.
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Deep Dive
2,138 words · generated 01/10/2026
What happened
In Maher v Maher [2020] NSWSC 844, Parker J considered a family dispute over a 40-hectare property at Greendale in outer western Sydney. Bob and Josephine Maher bought the property in September 1988 for $265,000. The purchase was funded partly by a Westpac mortgage and partly from their own resources, including proceeds from the sale of another investment property. The title was in Bob and Josephine's names. After Bob died in December 2017, ownership passed by survivorship to Josephine.
Whether a common intention constructive trust arose from contributions to the Greendale property.
Whether Victoria established proprietary estoppel in relation to the Greendale property.
Whether indemnity costs should be ordered for the claim against Robray, which was not pursued.
Cited legislation
2 cited instruments linked from this judgment.
The family operated a chicken debeaking and immunisation business through Robray Debeaking Pty Ltd. After the Greendale property was acquired, two houses were built there and the business moved to the property. Bob and Josephine, their son Robert and his wife Victoria, and their other son Ray and his wife Kelly lived there. The family lived in this arrangement for more than 25 years. Robert died in March 2015, after which conflict arose and Victoria and her children moved away.
Victoria claimed a 50 per cent interest in the property, alternatively seeking equitable compensation representing half its net value. Her pleaded bases were an express trust, a common intention constructive trust and proprietary estoppel. The claim against Robray was not pursued. Josephine's position was that no relevant promise or contribution had been made.
The key factual dispute was a conversation Victoria said took place in August or September 1988, before the purchase. In Victoria's account, Bob proposed that the four of them acquire land together, live there and run the business, with Robert and Victoria's share passing to them when Bob and Josephine died. Bob also allegedly said that the couple would sell their Erskine Park home and put the proceeds into the new property. Josephine's account was that the invitation was to move in and save money on mortgage payments, without any promise of a property interest or obligation to work in the family business.
Parker J found Victoria's account was unsupported by contemporaneous documents and appeared to be a reconstruction more than 30 years after the conversation. The Court considered the objective circumstances more reliable. It also found that Robert's $40,000 payment to Josephine after the sale of Erskine Park was probably repayment of an earlier loan. In any event, it was not a contribution to Greendale.
Why the court decided this way
The claims turned substantially on what the family discussed and what each person contributed. Parker J found that Victoria had not established the alleged promise or a property contribution that could support the equitable claims.
For the express trust claim, the Court emphasised the distinction between an immediate legally enforceable commitment and a shared family plan. The alleged discussion occurred before Bob and Josephine had bought the property. The parties did not know whether the purchase would proceed or what its financial arrangements would be. The Court also considered that the alleged promise was inconsistent with Josephine's credible, unchallenged evidence that she and Bob treated their sons equally. On Victoria's own version, any interest would arise only when Bob and Josephine died, which did not support an immediate declaration of trust. The Court concluded that the parties may have shared a plan, but had not made an agreement creating enforceable interests. See the Express trust section, particularly paras 6-11.
The Court also addressed the issue of future property. It noted that future property is not assignable at law and that, where consideration is given, equity treats the arrangement as an agreement to assign the property once acquired. It referred to Norman v Federal Commissioner of Taxation and Peldan v Anderson. However, Parker J expressly said it was unnecessary to decide whether the future-property difficulty could be avoided by describing the arrangement as a declaration of trust over future property. The decision therefore rests on the Court's factual findings and conclusion about intention, rather than a final resolution of that legal question. See the Express trust section, paras 2-5.
The common intention constructive trust claim failed because the Court found that Bob and Josephine alone funded the purchase and construction. Parker J described the doctrine as applying where one party holds legal title while another makes money or in-kind contributions, and the circumstances show that the titleholder was not intended to receive all the benefit of those joint contributions. The Court found no such joint contribution here. The $40,000 was paid after the property had been acquired and, on the Court's findings, was not connected with the Greendale purchase. See the Common intention constructive trust section, paras 2-4.
The proprietary estoppel claim failed on both promise and detriment. The Court found no promise giving rise to an expectation that Victoria would receive an interest in land. It also assessed detriment across the overall circumstances as at 2015. Robert and Victoria had not paid rent or utility charges for their occupation, and the Court found no evidence that they sold their Erskine Park property below market value or lost financial opportunities because of the move. The evidence showed that Robert was paid generously by Robray and that Victoria was paid for her work during the relevant periods described in the judgment. Their occupation was, in the Court's assessment, subsidised. See the Proprietary estoppel section, paras 1-8.
Before and after state of the law
The judgment presents itself as an application of existing equitable principles to the evidence, not as a change to the law. Parker J referred to Muschinski v Dodds and Baumgartner v Baumgartner as the authorities on which Victoria based her common intention constructive trust claim. The judgment describes the relevant principle in terms of contributions to property and the unconscionability of a titleholder taking all the benefit of joint contributions. Its decision was that the necessary factual foundation was absent in this case.
For future property, the judgment recounts the principle from Norman v Federal Commissioner of Taxation, approved in Peldan v Anderson: future property is not assignable at law, while an assignment for consideration is treated in equity as an agreement to assign once the property is acquired. Parker J left open whether the alleged arrangement could be characterised as a declaration of trust over future property, because the Court's findings made it unnecessary to decide.
On proprietary estoppel, the judgment states the requirements it applied: a promise creating an expectation of an interest in land and action to the promisee's detriment. It further says detriment is assessed at the time the promisor seeks to escape the promise. The result turned on the absence of a proven promise and detriment in the circumstances found, rather than a modification of those requirements.
The costs ruling likewise applied, rather than reformulated, the principles discussed in Colgate-Palmolive Company v Cussons Pty Limited. The Court declined indemnity costs for the abandoned claim against Robray. It stressed that it had not been asked to determine whether the claim had always been hopeless, and considered that such a retrospective inquiry would be undesirable on the application before it.
Key passages with plain-English translation
The Court said the family plan was “not an agreement which created any legally enforceable commitments or interests” (Express trust section, para 11). In plain English, the Court accepted that family members may have discussed living together and future arrangements, but found that discussion did not amount to a binding ownership agreement.
Parker J described the evidence about the alleged 1988 conversation as lacking contemporaneous support and considered Victoria's affidavit account to be “essentially a reconstruction” (Express trust section, para 6). That assessment mattered because the Court preferred objective circumstances over a recollection formed decades after the event.
On contributions, the Court found that “the only contributions which were made to the Greendale property came from Bob and Josephine” (Common intention constructive trust section, para 3). The $40,000 payment did not change that conclusion: it was probably repayment of a loan and, regardless, was not a contribution to the property.
For estoppel, Parker J stated that “an essential requirement” was a promise giving rise to an expectation of an interest in land (Proprietary estoppel section, para 1). The Court found no such promise. It also considered whether the move and sale of Erskine Park caused detriment, but found no evidence of a below-value sale or foregone financial opportunity and noted the subsidised occupation (Proprietary estoppel section, paras 4 and 7).
On costs, the Court declined to make an indemnity order concerning Robray. Parker J considered it unfortunate if that costs power were used in a way that discouraged parties from making sensible alterations or abandonments at trial (Costs section, para 2). The decision did not determine that every abandoned claim avoids indemnity costs. It addressed the application and circumstances before the Court.
What fact patterns trigger this precedent
The judgment is relevant to disputes where a family member alleges that informal discussions about living together, working in a family business or inheriting property created an immediate equitable interest. It demonstrates the significance of distinguishing a shared expectation or plan from an intention to create a legally enforceable commitment. In this case, the alleged interest was to pass only on the parents' deaths, and the Court considered the purchase and financial arrangements uncertain at the time of the alleged conversation.
It is also relevant where a claimant relies on a constructive trust but the registered owners funded the purchase and improvements. The judgment focused on whether the claimant or their partner contributed money or in-kind value to the property, and whether the $40,000 payment was connected to the acquisition. The timing and purpose of a payment were material to the Court's assessment.
For proprietary estoppel, the case is pertinent where a claimant says they changed their position because of an assurance about land. The judgment considers detriment in the overall context, including occupation costs, payment for work, the value received from living at the property, and evidence of any financial opportunity lost. It does not establish that living rent-free will always defeat detriment, or that paid work can never form part of a detriment case. Its findings are tied to this evidentiary record.
Finally, the costs discussion may be relevant where a party abandons a claim at trial and the opposing party seeks indemnity costs. The Court considered the timing and circumstances, whether it had been asked to investigate whether the claim was hopeless from the outset, and the practical consequences of a separate costs assessment.
How later courts have treated it
The supplied judgment contains no later judicial decisions discussing or applying Maher v Maher. It is therefore not possible, on the available source, to describe how subsequent courts have treated it, whether they have followed or distinguished it, or whether it has been cited in later cases.
The authorities mentioned in this judgment are earlier cases, not later treatment of Maher. They are Muschinski v Dodds, Baumgartner v Baumgartner, Norman v Federal Commissioner of Taxation, Peldan v Anderson and Colgate-Palmolive Company v Cussons Pty Limited. Parker J used those authorities to frame the doctrines or costs issue before the Court. Nothing in the supplied text records a subsequent appellate decision or later reconsideration of the judgment.
Still-open questions
The judgment leaves one express legal question undecided: whether the requirement concerning consideration for an equitable assignment of future property could be avoided by characterising an arrangement as a declaration of trust over future property. Parker J said it was unnecessary to resolve the point because of the factual findings.
The decision also does not determine how a differently evidenced family arrangement would be treated. The Court's conclusion rested on its assessment of this conversation, the uncertainty about the proposed purchase, the absence of contemporaneous documentation, and the finding that the arrangement was a common plan rather than an enforceable commitment. The judgment does not specify what wording, conduct or documentation would be sufficient in another case.
Likewise, the decision does not set a general measure for proprietary-estoppel detriment where a claimant has lived on family land, worked in a family business or sold another property. The Court assessed the evidence before it, including occupation without rent or service charges, remuneration, and the lack of evidence of a below-value sale or lost financial opportunity. It did not decide how those considerations would weigh where the evidence were materially different.
On costs, the Court did not determine whether the claim against Robray had been hopeless from its inception. It refused the indemnity order in the application as presented, including because a retrospective inquiry was not requested and a separate order could complicate the costs assessment. The judgment therefore does not resolve the general treatment of every claim abandoned at trial.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Judgment (8 paragraphs)
[1]
Judgment - EX TEMPORE
Revised from transcript; issued 2 July 2020
This is a family dispute concerning a property at Greendale in outer western Sydney. For convenience, and without disrespect, I will refer to the members of the family by their given names.
The property is a 40 hectare (100 acre) semi-rural property. It was bought in September 1988 by Robert Gordon Maher and Josephine Carmela Therese Maher, his wife. I will refer to Robert Gordon Maher as "Bob" Maher, to distinguish him from his son, Robert Jnr.
Bob died in December 2017 and ownership of the entire property has now passed by survivorship to Josephine. Bob and Josephine had two sons, Robert George Maher, to whom I will refer as "Robert", and Raymond Gregory ("Ray") Maher. Both married and had children of their own. Robert's wife was Victoria. Ray's wife was (and is) Kelly.
The family members conducted a business providing chicken debeaking and immunisation services to poultry farmers. At all relevant times this business was conducted through a company called Robray Debeaking Pty Ltd ("Robray"). After the Greendale property was purchased, the business was operated from that location.
Following the purchase of the Greendale land, two houses were built on it. Eventually all three couples (Bob and Josephine; Robert and Victoria; and Ray and Kelly) came to live in the two houses. Except for a short period at the beginning, Ray and Kelly lived in one house and Bob, Josephine, Robert and Victoria lived in the other.
The three couples appear to have lived happily on the property in this way for more than 25 years. As I have mentioned, both Robert and Victoria, and Ray and Kelly, had children of their own, and when they arrived they too lived in the houses that their parents were occupying. But in March 2015 Robert died suddenly. This left Victoria as a widow with two children. Unfortunately conflict arose between Victoria and her late husband's parents and she, together with her children, moved out of the Greendale property.
[2]
Issues for determination
In these proceedings Victoria is the plaintiff. Josephine is the first defendant and Robray is the second defendant.
Victoria claims a declaration that Josephine holds the Greendale property (subject to a mortgage on the property in favour of an external lender) as to 50 per cent for herself and 50 per cent for Victoria (in her own right and as administratrix of her late husband's estate). Victoria seeks consequential orders for the sale of the property, the payment of external creditors, and the division of the proceeds equally between Josephine and herself.
Alternatively Victoria seeks equitable compensation representing half of the net value of the property. According to the evidence before me the property is currently worth about $5.2 million.
Victoria puts her claimed interest on three different doctrinal bases. First, she relies on an express trust. Second, she relies on a common intention constructive trust of the type recognised in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137. Third, she claims the interest by way of proprietary estoppel. The claim against Robray has not been pursued.
Josephine's defence to Victoria's claim concerning the Greendale property is essentially factual. Her contention is that the elements of the various doctrines upon which Victoria relies are not made out. Somewhat surprisingly, no defence based on the statute of frauds (Conveyancing Act 1919 (NSW), s 23C) is advanced to the express trust claim.
[3]
Summary and analysis of evidence
Bob, Josephine and their sons were a very close family. Both Robert and Ray, when they were married, chose to be married on 27 December, the date on which their parents married. It was clear from Josephine's evidence that she deeply loved both of her sons.
The chicken debeaking business was begun by Josephine in 1975 and Bob became involved in it in 1977. Robray was incorporated in July 1982. The company belonged to Bob and Josephine and they were the directors of it.
At the time of the events with which I am concerned Bob and Josephine were conducting the business from their home at Greystanes. Robert and Ray were also employed in the business.
Robert and Victoria married in December 1986. At some point after their marriage they bought a house at Erskine Park in Western Sydney. Apparently the purchase was funded, in part, with a loan from a bank. The evidence does not identify precisely when Robert and Victoria bought the Erskine Park property, and there was no documentary evidence of what it cost and how much was borrowed from the bank.
By the second half of 1988, Bob and Josephine were looking to buy a new property with sufficient room for them and for members of their family to live and where they would continue to operate the chicken debeaking business. They identified the Greendale property as suitable. The purchase of the property was completed on 30 September 1988. The consideration for the purchase was $265,000. This was financed in part with a mortgage from Westpac Banking Corporation.
The Westpac mortgage is in evidence and is dated 26 September 1988. It appears to have been stamped for loan security duty purposes in the amount of $141,000. The balance was paid by Bob and Josephine from their own resources. In order to raise some of the money they sold an investment property which they owned elsewhere in western Sydney.
At the time of the purchase the Greendale property was vacant land. As I have already mentioned, two houses were later built on it. The houses were standard form ones which were selected from a builder's display village. It seems that Victoria as well as Josephine were involved in choosing some of the finishings and other building options for the houses.
The two houses took about six months to complete. Construction began in mid‑1989 and was completed just before Christmas in that year. At that point Robert and Victoria moved out of the Erskine Park property, which they were attempting to sell, and moved into one of the houses. Ray and Kelly married on 27 December in that year. They moved into the other house after their return from their honeymoon in mid‑January 1990.
[4]
Express trust
Counsel for Victoria acknowledged that her case stands or falls on accepting her version of the conversation in August/September 1988. Counsel submitted that I should accept Victoria's account. He argued that her demeanour was straightforward and she adhered to her account in cross-examination.
In the course of final submissions, I pointed out to counsel for Victoria that at the time of the alleged conversation, Bob and Josephine had not yet purchased the Greendale property. I suggested that Victoria's case really had to be one in the nature of specific performance of an agreement for valuable consideration under which Robert and Victoria were to sell the Erskine Park property, and, perhaps, work in the business, in exchange for a half interest in the Greendale property when acquired by Bob and Josephine.
But in response, counsel made it clear that his client's case was one which alleged an immediate declaration of trust. Counsel submitted that I should infer that at the time of the conversation, contracts had already been exchanged and accordingly, that Bob and Josephine had rights over the Greendale property, which could be the subject of such a declaration of trust. Alternatively, he characterised the situation as one of a declaration of trust of future property.
The latter analysis has its problems. Future property is not assignable at law. It is assignable in equity but only if consideration is given for the assignment. Strictly speaking the phrase "assignable in equity for consideration" is a type of shorthand. In such cases if consideration is given equity will construe the arrangement as an agreement to assign the property when it is acquired: see Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 24‑25, approved in Peldan v Anderson (2006) 227 CLR 471 at 482 [27].
It is difficult to see how the requirement of consideration could be sidestepped by categorising the transaction as a declaration of trust over future property. But in the view I take of this case it is not necessary to pursue this question any further.
Victoria's account of the conversation in August/September 1988 has no contemporaneous documentary support. I do not think that trying to make a judgment as to its accuracy based on how Victoria presented in the witness box more than 30 years after the event is a safe way of proceeding. In any event, I was left with the impression that Victoria has little or no actual recollection of what took place at the time, and that the conversation as presented in the affidavit is essentially a reconstruction.
[5]
Common intention constructive trust
I have already concluded that the probabilities favour Josephine's account of the 1988 conversation. I have the same view about the $40,000. Indeed, Victoria conceded in cross‑examination that she was not party to the dealings between Robert and his mother in that regard. She was, therefore, not in a position to deny Josephine's account.
These findings make the recognition of a common intention constructive trust impossible. Such a trust is imposed by equity where property is acquired in the name of one party with contributions in money or in kind from another and in circumstances where it was not intended that the acquiring party would get all of the benefit of the parties' joint contributions. If the venture fails equity intervenes because it is unconscionable for the party holding the legal title to rely on it so as to take all the benefit of the contributions for his or her own.
In the present case, on the evidence, the only contributions which were made to the Greendale property came from Bob and Josephine. On my findings, the payment of $40,000 following the sale of the Erskine Park property was probably the repayment of a loan, but, whether that is right or not, on no view was it a contribution to the Greendale property. By the time the $40,000 was paid in May 1990 the property had been acquired by Bob and Josephine entirely from their own resources and they had also funded the construction of the two houses on it.
In my view there is simply no room for the application of the equitable principle which I have described. The common intention constructive trust claim fails.
[6]
Proprietary estoppel
An essential requirement for the recognition of an equitable interest in property by means of proprietary estoppel is a promise by one party, giving rise to an expectation on the part of the other, that he or she will receive an interest in land. On my findings, no such promise was made in this case.
Furthermore, a proprietary estoppel is not enforceable unless the promisee has acted on the promise to his or her detriment. Whether the detriment has been suffered must be judged at the time the promisor seeks to escape from the promise.
In this case, as I have already pointed out, the evidence establishes that the whole of the purchase price was paid by Bob and Josephine. There was no detriment from the $40,000 payment, because that amount was not paid on the basis of any expectation that it would give rise to an interest in the property.
The evidence established that Robert and Victoria were never required to make any payments by way of rent for their occupation of the house on the Greendale property, nor were they required to make any payments for electricity, water and other services. Their only contribution was that they paid a share of the costs of the food and other household expenditure for the house which they shared with Bob and Josephine. It was suggested by Victoria that in fact the costs of services and of other household expenses, together with the mortgage repayments, were met out of income derived from the Robray business. There is no direct evidence of that, but it seems to me to be immaterial in any event. The fact is that there was no detriment by way of expenditure on the part of Robert and Victoria.
At an earlier stage of the litigation, it appears to have been suggested that both Robert and Victoria were underpaid by Robray for the work which they did. As I have indicated, a claim against Robray was not pursued. In any event, the evidence before me established that Robert was always paid by Robray, and paid generously. In 2015, he was earning $120,000 per annum, and it appears that his salary was always around that value, taking the impact of inflation into account.
Victoria conceded that between 1993 and 2009 she only worked intermittently in the business and was paid for the work that she did. From 2009 onwards, she too received a weekly wage or salary payment. Although there was some dispute about whether she was paid for work done prior to 1993, I do not think that the resolution of that dispute is of any significance in resolving the claims in this case.
[7]
Conclusions and orders
For the reasons I have given, Victoria's claim fails and must be dismissed. As I have mentioned, the claim against Robray was not pursued and it too must be dismissed. Accordingly, there will be judgment for both defendants in the proceedings. I will hear the parties on costs.
[Parties addressed on costs]
It is agreed between the parties that as between Victoria and Josephine, Victoria should be ordered to pay costs on the ordinary basis. Counsel for Josephine sought an order that Victoria pay the costs of the claim against Robray on an indemnity basis. Counsel contended that the claim has always been a hopeless one, as was shown by its abandonment at the hearing. Counsel argued that the claim was so devoid of substance that it should attract an award of indemnity costs under the principles discussed in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233-234.
In my view, this is not such a case. I think it would be unfortunate if the Court's powers to award costs on an indemnity basis were to be exercised in such a way as to dissuade parties, once they reach trial, from making sensible alterations to their case or even abandonments of parts of it.
I have not been asked to go back to the beginning of the claim for the purpose of determining whether the claim against Robray was always hopeless. On an application like this, it would be undesirable to do so. Furthermore, making a separate indemnity costs order in favour of Robray would be likely only to lead to increasing the complexity of the assessment process, and probably would be unlikely to make a great deal of difference given that most of the costs are likely to have been incurred, even if Robray had not been joined.
In all the circumstances, I am not prepared to make an indemnity costs order concerning the claim against Robray as sought. The orders of the Court are:
Judgment for the first and second defendants.
Order that the plaintiff pay the first and second defendants' costs.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 July 2020
Judgment for the first and second defendants. Victoria's claims were dismissed, and she was ordered to pay both defendants' costs. The Court refused the application for indemnity costs concerning the claim against Robray.
Robert and Victoria completed the sale of the Erskine Park property on 4 May 1990. The sale price was $133,500. This was sufficient to discharge the mortgage to the bank but the settlement sheet is not in evidence and, again, there is no documentary evidence of how much was paid, nor was there of how much was owing under the mortgage at that point.
It is, however, common ground that Robert gave Josephine a cheque for $40,000 from the proceeds. The nature of that payment is in dispute and I will address it in due course.
In December 1990, Bob and Josephine sold their house at Greystanes. At around that time, they moved into the house on the Greendale property that was occupied by Robert and Victoria. Presumably the location for the chicken debeaking business was shifted at about the same time.
In evidence are further Real Property Act documents identified from a historical search of the Greendale property. The documents show that in October 1994, the loan from Westpac which had been used to acquire the property was refinanced with a company called Limlaw Nominees Pty Ltd. The mortgage in favour of Limlaw Nominees secured a debt of $420,000. Both Robert and Ray guaranteed their parents' liabilities under the loan.
Then in November 1996, the property was again refinanced, on this occasion with the Commonwealth Bank of Australia. The loan amount remained $420,000, but there was no guarantee by Robert and Ray.
Victoria gave evidence in support of her case by affidavit and was cross-examined. Two witnesses were called in the defence case, Josephine and Ray. Ray was not cross-examined.
The critical factual issue between the parties concerned a conversation which Victoria said that she and her husband, Robert, had with his parents in August/September 1988, prior to the purchase of the Greendale property.
Victoria said that this conversation began by Bob asking her and Robert whether they would like not to have a mortgage. She said that the conversation continued in the following way:
Bob: What if we all, all four of us together, bought a block of land of 100 acres and all lived on it together, and which will be yours when Josephine and I die.
…
Bob: We can all live, and run Robray Debeaking from [the new property]. We can look at display homes to build on the property, one house for us, one for mum and dad [sic]. Robray Debeaking will pay for electricity, water, petrol, and will fund the mortgage. You won't have to worry about a mortgage. The new property will be all of ours and our share will pass to you when we die.
Me: But what about our house at Erskine Park?
Bob: Well you would have to sell that house, you won't need it anymore, and the proceeds will be put into the new property.
Victoria's evidence was that she discussed this proposal with Robert and they decided to go ahead with it. She said that if the proposal had not been put forward in this way, she and Robert would have stayed at the Erskine Park property.
Josephine's account was quite different. She said that she and Bob invited Robert and Victoria to move in with them so that they (Robert and Victoria) could save money on their mortgage. She said that they were experiencing difficulty in making their repayments, but in any event, she was very happy with them coming to live at the Greendale property because she loved her sons and wanted them close to her.
Josephine denied that Robert (or Victoria) would be under any obligation to work in the family business. She said her attitude had always been that her sons could work in the business if they wished, but were free to work elsewhere. She said they worked in the business because they wanted to.
Josephine also said that the $40,000 that she received was a repayment of money previously advanced by her (or, perhaps, her and Bob jointly) to allow Robert and Victoria to buy the Erskine Park property. She said it had nothing to do with the acquisition of the Greendale property, which had taken place more than 18 months previously, and had been entirely funded by her and Bob.
In my view, the probabilities derived from the objective circumstances, as established by the evidence, are a better guide to the findings which the Court must make. In this regard I think that there are three major difficulties with Victoria's account.
First, it is inconsistent with Bob and Josephine's approach to inter-family financial dealings. Josephine said that she (and by inference, Bob) always treated their sons equally. I found this evidence compelling and credible and it was not challenged. It would have been inconsistent with such an approach for Bob and Josephine to have granted an immediate interest to Robert and Victoria in the Greendale property without making any comparable provision for Ray and Kelly.
Secondly, at the time of the alleged conversation the parties did not know that the purchase would even proceed or, if it did, what financial arrangements it would entail. Still less were they in a position to predict the course of events over the ensuing decades. They may well have contemplated that Robert would continue to work in the business. They may have hoped that he would do so until Boba and Josephine retired, but I accept Josephine's evidence that there was never any understanding and certainly no obligation on Robert that he would do so.
Third, on Victoria's own evidence, if any commitment was made it was not an immediate one. On the account of the conversation presented in Victoria's affidavit Robert and Victoria would not, in fact, receive half of the property until his parents died. On Victoria's own account, therefore, there was no immediately effective declaration of trust.
In the circumstances it seems unlikely that the parties would have been contemplating some legally enforceable commitment from each other. In my view it is far more likely that any discussion about the purchase and the future living arrangements at the Greendale property would have taken place in terms of expectations rather than immediately binding commitments. The parties may have, in a sense, "agreed" that Bob and Josephine would purchase the property, Robert and Victoria would sell the Erskine Park property and then they would all live together at Greendale, but it was an agreement only in the sense that the parties had a common plan. It was not an agreement which created any legally enforceable commitments or interests. The express trust claim fails.
Counsel for Victoria argued that Robert and Victoria had given up their interest in the Erskine Park property, and that this of itself represented a detriment. In a sense this is correct. But for the purposes of proprietary estoppel, detriment must be assessed on the overall balance as at 2015. There is no evidence that Robert and Victoria sold the Erskine Park property for less than it was worth. Nor is there any evidence that their occupation of the Greendale property had cost them anything in terms of foregone financial opportunities. Indeed, as I have pointed out, they appear to have lived at Greendale on a subsidised basis.
When Robert died, the couple had no savings of any substance. The evidence suggested that this was because Robert had a gambling problem, and any surplus which was generated from his wage was gambled away. I am not sure that at the end of the evidence there was any real dispute about this. But in any event, it does not matter. The point is that neither Robert nor Victoria has any complaint against Bob and Josephine for their financial circumstances, which could be recognised as some sort of detriment for the purpose of proprietary estoppel. The proprietary estoppel claim also fails.