... "
24 The so-called invoices are included in the annexures. The invoices are not dated. However the evident purpose of creating and annexing the invoices was to suggest that the documents were contemporaneous documents and thus supported the claim. Having been told by his solicitor that he needed "proper documentation" the plaintiff set about providing it. When asked why he did not say in his affidavit that he had prepared the documents at the time he prepared his affidavit, the plaintiff said "I was not advised in any other way so I did it the best way I could."
25 It bears repetition that in swearing or affirming an affidavit a witness says that the affidavit contains not only the truth, but the whole truth and nothing but the truth. In ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J (as his Honour then was) said (at 197):
"It cannot be emphasised too greatly that one's obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth. It is completely unacceptable for a solicitor to prepare an affidavit in which a witness gives a half truth and it is completely unacceptable for a witness ... to only give the court a half truth. "
26 I do not know whether the plaintiff's solicitor was aware that the undated invoices annexed to the affidavit were prepared at the same time as the affidavit. I am not in a position to make any finding about the plaintiff's solicitor's knowledge of these matters, but it does appear from the plaintiff's evidence that his solicitor should be invited to make submissions as to whether I should refer this matter for investigation by the Law Society Council or the Legal Services Commissioner.
27 Included in the claim of $15,570 for construction of the detention tank was a sum of $1,500 said to have been paid to Permaform Australia for the permanent formation of the walls of the tank. The plaintiff belatedly tendered documents from Permaform Australia showing the delivery of the sections of the tank and an invoice for $1,500 in respect of them. I would accept that item of charge. However, this, together with the sums of $660 paid to J & E Cocksedge, and $2,000 paid to Stanton Plant Hire is the only corroboration of this claim.
28 Whilst I cannot accept the details of the plaintiff's evidence as being reliable, it is clear that the work was done and that rock was encountered. The defendant did not dispute that a reasonable cost for the work in construction of the detention tank would be in accordance with the quotation that the defendant received in June 1996 of $8,600 plus $80 per cubic metre if rock were required to be excavated. As I have said, there was no direct evidence as to the amount of rock excavated. So far as I can assess from photographs which were tendered and from the drawing 12248-1 and annexure WW, approximately 15m³ of rock was excavated. I therefore allow $9,800 in respect of this work.
29 The next charge was $4,300 to connect the sewer to the water board and associated works described in para E of annexure CC (see para [10]). In support of this claim the plaintiff produced an invoice from Grandview Prestige Plumbing Pty Ltd apparently in the sum of $4,191 and claimed an extra $109 as an extra fitting which he supplied for water connection to the old house. The defendant challenged the authenticity of the invoice claiming that the invoice was originally in the sum of $1,191 and that the plaintiff had altered the invoice by adding a figure "3" to one of the items in the invoice and amending the figure for the total from 1 to a 4. The plaintiff did not produce the original of the invoice on discovery or in the proceedings. Initially he refused to accept that the document he produced was a photocopy and not the original, but after an overnight adjournment he accepted that the document was a photocopy. As I understood his evidence, he suggested at one point in re-examination that the original documents may have been lost either in the Local Court proceedings or in the hands of lawyers. However, he later accepted that the document was part of his documentation which he sent for the first time to a firm of solicitors to be produced to the Local Court. He had no explanation as to why that documentation was a photocopy rather than an original invoice. The invoice stated that there was a charge of $3,970 "as per quote". The quote was not produced. On its face, the invoice totalled $4,191, but a cheque was drawn to Grandview Prestige Plumbing for $1,191. The plaintiff said that he paid "some cash" to Grandview Prestige Plumbing but said that he could not remember how much cash he paid.
30 Whilst I have doubts as to the authenticity of the invoice, I am not prepared to say that the invoice has been altered by the plaintiff. The reason for that is that Mr Lowe's quote of 27 June 1996 included an amount of $3,600 to extend the water board's sewerage main to the proposed new allotment. This is the same work described in the invoice. If one builder at about the same time was quoting $3,600 for the work, it is more likely that the other builder was quoting $3,970 rather than $970.
31 On the other hand, I am not satisfied as to the additional charge of $109 for which there is no corroborating material. I allow $4,191 for this work.
32 In item F the plaintiff claimed $1,900 for the installation of a pole and conduit pipe for an electricity connection and the supply and installation of a telecom conduit. He annexed a quotation (to which he had added in pen the word "invoice") for $1,550 in respect of the former work and made his own charge of $350 in respect of his installation of a telecommunications conduit. Mr Lowe quoted $700 for the same work. There is no evidence of how much the plaintiff in fact paid in respect of this work. I am not satisfied that the plaintiff either incurred or saved any expense greater than $700. I allow that sum.
33 The next item G was for an amount of $2,973 for laying stormwater pipes in the council nature strip and excavating trench into rock. The only support for this charge was a so-called invoice prepared by the plaintiff at the time he prepared his affidavit. He did the work himself. Mr Lowe's quote for what appears to be the same work came to $1,700. I accept that this was an expense that the plaintiff saved and allow that sum in respect of item G.
34 In item H the plaintiff claimed $2,233 to construct front and rear fences. In item I he claimed $685 to purchase and lay turf to council requirements. Mr Lowe quoted $2,600 for this work. The charges include two items of $603 and $685 for work done by the plaintiff supported only by the so-called invoices from JMD CAM Group. I accept that the plaintiff saved an expense of $2,600. I do not accept his claim in any greater sum.
35 In item J the plaintiff claimed $750 for drawing the final survey plan of services and submitting the same to the council with the final linen plan for approval. That sum was made up of an invoice from a firm of consulting surveyors and planners of $490, which is not challenged. The plaintiff himself produced an invoice for $260 for drawings which he made. He did not identify the drawings and I am not satisfied as to whether $260 is a reasonable charge for the work which he claims to have done. I allow $490 in respect of this item.
36 There was a further invoice for $140 for the inspection by a consultant of reinforcement for the lid of the detention tank. This formed part of a claim of $475 under item K. The sum of $140 is not challenged and I accept it. There is no corroboration of the balance of the claim, which I reject.
37 In item L the plaintiff claimed $455 for moneys paid to the council to obtain the release of the final linen plan. This claim was not corroborated. The plaintiff obtained leave to reopen to tender some receipts from Warringah Council. Included in the receipts was a receipt for $403 paid for the release of the linen plan and I allow that sum.
38 In summary, in respect of the work set out in annexure CC, I accept that the plaintiff incurred expenses or carried out work to the value of $25,714.40 for which he is entitled to contribution from the defendant. (This is the sum of the amounts allowed in paras [18], [28] and [31]-[37].) This is less than the amount quoted by Mr Lowe. But that is because I allow no contribution for work which the plaintiff did not do himself and for which he incurred no expense - in other words for the so-called favours.
39 The claim of $13,847.60 set out at para [11] included a sum of $985 for house replacement insurance. This was insurance which the plaintiff claimed to have paid on the house which was sold in 1996. It does not add to the value of the property retained and is not allowable on an equitable accounting.
40 There was little corroborating documentation for the charges amounting to $12,744 as claimed above (see para [12]). The plaintiff claimed $4,800 for his own fees but there was no evidence of how much time was spent by him in carrying out the work for which that charge was made. Nor is there evidence of how much would have been incurred had the sketches been prepared by a third party. The plaintiff produced receipts totalling $2,775 from the council and from Sydney Water for various matters covered by the schedule and I allow that sum. As to the balance of the claim I can only say that the sums allegedly expended or saved have not been proved.
41 The plaintiff also claims to be entitled to $4,363 as a fee for supervising work. It appears to me that much of the work was carried out by him. The evidence does not establish that there was any need for supervision or what a reasonable cost of such supervision would have been.
42 The plaintiff also claims to have spent $684 in registering the linen plan at the Land Titles Office. That was not disputed and is allowed.
43 In summary therefore the plaintiff is entitled to contribution from the defendant for the total of $25,714, $2,775 and $684 ($29,173). The defendant is entitled to an offset of $1,819 for water rates which the defendant paid, reduced by $118.60 for one payment made by the plaintiff. The plaintiff is entitled to contribution of half of $27,473 ($13,737) from the defendant's share of the proceeds of sale of the property.
44 I will hear the parties on whether interest should be allowed on that sum and if so at what rates.
Second Claim
45 The plaintiff claims damages or equitable compensation for the defendant's refusal to agree to construct a dwelling on the rear of the property on the land which became a separate lot after subdivision which the parties retained. The plaintiff ultimately identified the loss allegedly suffered as a result of the defendant's refusal as amounting to $19,702 before interest. The plaintiff claimed damages or equitable compensation of half this sum.
46 The plaintiff gave evidence that in mid to late 1992 he proposed to the defendant that he draw plans and submit them to council to get approval to construct a house on the back of the then unsubdivided property which could be rented out to repay the loan the parties had both taken out in order to acquire the property. According to the plaintiff the defendant said "Yes - let's go ahead and do that". In due course a development application was submitted and approved to allow for the construction of a single-storey dwelling on the back of the then unsubdivided block. Later, according to the plaintiff, he said to the defendant "Look, there's been a ruling that enables us to subdivide the land into two properties of fair shares. We can keep one each, or sell up and go our separate ways. Or we could also keep them and rent them both out and then sell up when the market is more favourable." The plaintiff deposed that the defendant agreed to this. Both parties signed a development application which led to the council granting its conditional approval on 19 October 1994 to the subdivision of the land. The prior development application to the construction of a dwelling on the rear of the property had been given on 10 March 1994. According to the plaintiff the defendant said to him "You go and get a loan approved and we can build the house". The plaintiff obtained conditional approval for an advance of $372,220 from the Greater Building Society. This loan was to pay out the existing mortgage and to provide $125,000 towards the cost of construction. That amount was not sufficient to pay for the cost of construction of a second dwelling. The plaintiff obtained a quote from a builder (only part of which was tendered in evidence), which included an estimate to carry out building works to construct a dual-occupancy dwelling on the property for $156,555. It is not clear from the single page of the quote which the plaintiff tendered what work was included and what was excluded from the estimate. The plaintiff said that the loan of $125,000 would have been sufficient to have paid for all of the works which he and the defendant could not do between them.
47 However, nothing was finalised between the parties. The defendant considered there was insufficient equity in the property to borrow the amount of money that they would need in order to develop the property. He had recently lost money on a development at Frenchs Forest and considered the risks of a development of the Beacon Hill property were too high to warrant proceeding further. There was no agreement on the appointment of a builder, or on precisely what work was to be done by a builder to be engaged, or what work was to be done by the plaintiff or the defendant. The defendant did not agree to the terms of a loan available from the Greater Building Society. There was no agreement as to when any work would commence or who would supervise the work. There was no agreement on whether the subdivided lot would be sold after a house was constructed or whether the house would be rented. Either party was free to withhold his assent to proceeding further.
48 Moreover, if there were an enforceable agreement, the defendant repudiated the agreement by no later than 1995. Any cause of action for breach of contract was barred by s 14 of the Limitation Act.
49 The plaintiff submitted that the parties were partners and that the defendant was in breach of fiduciary duties he owed to the plaintiff by refusing to proceed with the construction of a dwelling on the rear lot. The plaintiff contended that the Limitation Act was not a bar to a claim for equitable compensation for breach of fiduciary duty. The defendant did not plead that equity should apply the statute by analogy.
50 I do not accept that the parties were partners. They did not carry on a business in common with a view of profit. Their co-ownership of the property, its subdivision, and the possible construction of a separate dwelling on the subdivided lot did not amount to the carrying on of a business (Partnership Act 1892 (NSW), s 1(1)). Co-ownership of property does not of itself give rise to fiduciary obligations (Pizzale v Gumina Enterprises Pty Ltd (1994) 13 WAR 88 at 109). Whilst a joint undertaking carried out through the medium of joint ownership might give rise to fiduciary obligations, whether that is so or not will depend upon the form which the particular joint venture takes and the content of the obligations which the parties to it have undertaken (United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1 at 10-11).
51 In the present case, both parties were entitled to have regard to their own interests in deciding whether or not and to what extent to proceed with development of the land. The defendant did not breach any obligation he owed to the plaintiff, whether fiduciary or contractual, by declining to take the risk of loss in undertaking further joint borrowings which would have been required if the construction of the separate dwelling were to have proceeded.
52 I should add that even if the defendant were in breach of any such obligation, the plaintiff has not established any loss. The extract from the quote from the prospective builder of 13 April 1994 did not establish what would have been the cost to construct a house on the premises. There was no evidence of what work the plaintiff contended he, or he and the defendant, could themselves have carried out, or what would have been the cost of the remaining work. As a loan approval had only been obtained for construction finance of $125,000 it was not established that the parties could have completed the construction of a dwelling.
53 For these reasons the claim for damages or equitable compensation fails.
Third Claim
54 The third claim is for damages of half of $7,300 arising from the defendant's alleged refusal to accept an offer for the front block of the property of $275,000. That property was sold some months later for $267,500. There is no evidence that the defendant refused to accept the offer. For all that appears the offeror simply did not proceed. Even if the defendant did refuse the offer, there is no basis for saying that this was a breach of any duty he owed to the plaintiff. The fact that the property was subsequently sold at a lower price does not mean that the defendant was obliged to agree to the earlier offer of a higher price. In any event, the claim is statute-barred.
Fourth Claim
55 The fourth claim was for expenses of $1,968 for works carried out to enable the sale of the house on the front block to take place. The plaintiff claimed this amount for removing the air-conditioner and replacing a window, repairing the hot water system and replacing a faulty pier. This work did not increase the value of the property the parties retained. Any claim the plaintiff has against the defendant in respect of these works could only lie on a common money count for moneys paid at the defendant's request and for their joint benefit, or as a quantum meruit for work done at the defendant's request. Those claims are statute-barred.
Fifth and Sixth Claims
56 The plaintiff makes two claims in respect of time spent and work done in connection with the grant of easements to adjoining owners for which the parties were paid $25,000 and $18,710. The first easement was registered on 14 December 1995. Connected with the grant of this easement was work done to install pipes over the land in 1996. The same excavation was required to be done to satisfy conditions of the subdivision. The payment of $25,000 for the grant of the first easement was divided between the parties equally. The plaintiff received more than 50 percent of the payment for the second easement. Neither easement has been shown to add to the value of the land retained by the parties. To the contrary, the burdening of the land by the easements would have detracted from the value of the land and it was for this that compensation was received. As the plaintiff admits that he received $12,500 for the grant of the second easement whereas the defendant received only $6,210, he has been more than compensated for work done in respect of the grant of the easements. In any event, any claim in respect of work done in connection with these easements was statute-barred at the time these proceedings were commenced.
Conclusion
57 It follows that on the sale of the rear lot by trustees for sale the plaintiff is entitled to contribution from the defendant of $13,737 plus any interest which might be awarded. The plaintiff's other claims should be dismissed.
58 The amounts which the parties must have spent in these proceedings is out of all proportion to the amount at stake. The plaintiff's conduct of his case leaves much to be desired and must have increased the costs. I will hear the parties on costs.
59 The plaintiff's evidence does not permit the making of orders for the appointment of trustees for sale. If trustees for sale are to be appointed there must be joint trustees and not a single trustee (Conveyancing Act, ss 66B and 66G). The parties expressed the hope that the cost of trustees could be avoided. The defendant indicated that no point would be taken that the plaintiff was not entitled to contribution if orders were not made for the appointment of trustees for sale but the parties agreed on a regime for sale. After judgment was reserved I was advised that the parties had agreed to orders for the listing and sale of the property. Those orders will provide for the payment of contribution.
60 I will stand the proceedings over to a date to be fixed: