Marguerita Strauss v Ian Bennett

Evidence concerning improvements made to property (September 1998 to February 2005)

1. It was common ground that when the plaintiff (to whom I will refer as Mrs Strauss) purchased the property in 1998 it was vacant apart from an incomplete house structure which was described as a "shell". Mrs Strauss deposed that she and her husband (now deceased) funded a major renovation and extension of the house, and that it now comprises three bedrooms, a combined kitchen/dining/lounge-room, a sunken lounge-room/study, a bathroom, two downstairs storage rooms (including a laundry), an undercover parking area, and landscaped gardens.
2. The defendant (to whom I will refer as Mr Bennett) accepts that Mrs Strauss and her husband paid for the work done to make the house habitable for Lara Strauss who moved in in early 1999 with the child Isis (born in December 1996). These works were largely complete by the time Mr Bennett moved in in about July or August 1999.
3. Mr Bennett claims that he made very substantial contributions to further improvements made to the property after July or August 1999. He claims that he made those contributions as part of a joint endeavour between himself, Mrs Strauss and Lara Strauss for the development of the property, which endeavour has since failed, and that it was never intended that Mrs Strauss would retain the benefit of his contributions. Mr Bennett further claims that he made those contributions due to an expectation (created, encouraged or acquiesced in by Mrs Strauss), that he owned the property jointly with Lara Strauss, or would come to so own the property.
4. Mr Bennett deposed that he believed, based on statements made by Mrs Strauss and by Lara Strauss, that the property was a gift to the couple "to improve and make our home upon". Mr Bennett deposed that he could not recall the precise details of those statements, but that he recalled Mrs Strauss saying to Lara Strauss and himself in about August 1997 words to the following effect: It is your property now and it is for you to make it nice.
5. It appears that the placing of the statement as occurring in about August 1997 was erroneously based on some photographs taken of the couple and Isis in the general vicinity of the property. One of the photographs is accompanied by a handwritten note in these terms: Ian, Lara and Isis, the proud new co-owners of this beautiful property at Main Arm 23/8/97
6. Mr Bennett deposed, incorrectly, that the photographs were of the property itself, and were taken by Mrs Strauss (or her husband) around the time the property was purchased by Mrs Strauss. He also deposed, incorrectly, that the accompanying handwritten notes were made by Mrs Strauss. Mrs Strauss denied that she had taken the photographs or was present when they were taken, and Lara Strauss gave evidence (which I accept) that the photographs were in fact taken by her sister (who was the author of the handwritten notes), at a different property in the area at a time when Lara Strauss and Mr Bennett were planning to purchase an interest in that other property.
7. Mrs Strauss denied that she ever told Mr Bennett that the property was "your property now and it is for you to make nice". Mrs Strauss further deposed that on many occasions from 1999 she indicated to Lara Strauss that whilst she had purchased the property for Lara to live in, she (Mrs Strauss) was the owner of the property. Mrs Strauss also deposed that she charged her daughter rent to stay at the property. She stated that the rent was initially $80 per week, and was $150 from 2007 to 2014.
8. Mr Bennett deposed that Lara, Isis and he "started living on the property very soon after it was purchased". This is also incorrect; he did not move in until about July or August 1999, more than six months after Lara and Isis had moved in.
9. Mr Bennett has provided (in paragraphs 9 to 26 of his affidavit) an account of his role in the building work that was undertaken on the property after he commenced living there. He states that he organised all the building and engineering plans and specifications, was involved in the engagement of various contractors, and undertook labouring (particularly landscaping work) "acting as the builder's mate" in order to reduce costs. He says he did that work whenever his employment obligations permitted it. Mr Bennett estimates that he was doing "thousands of hours of work on the property each year" between about 1999 and 2002.
10. Mr Bennett deposed that he was paying for the building works, the labour and most of the materials, mostly by cash. He considered that both he and Lara were paying the money. He deposed that Mr and Mrs Strauss "did help out", but that he paid about 85% of the total costs. Mr Bennett states that the money (again mostly cash) came from various sources, including members of his family, and friends. I note that at one point in his cross-examination, Mr Bennett seemed to accept that in the period 1999 to 2005 Lara Strauss' parents paid for most of the improvements to the property.
11. Mr Bennett deposed that he undertook or paid for extensive landscaping work in about 2001. This work involved terracing and the construction of retaining walls. He said that he spent $40,000 on the purchase and delivery of rocks.
12. Mr Bennett estimates that he spent the equivalent of 800 full working days engaged in the activities described above, and that he paid approximately $160,000 in cash towards the cost of the works. No receipts, invoices, bank statements or any other documents were adduced in evidence to support those assertions.
13. Evidence capable of corroborating Mr Bennett's account to some extent was called from Messrs Hartmann, Hopson, Adams and Jones.
14. Mr Hartmann (who later became Lara Strauss' husband) deposed that he was a regular visitor to Mr Bennett and Lara's house. He states that he saw the structure on the property before they moved in and that "it was not liveable". Mr Hartmann says that he saw that it was Mr Bennett who proceeded to build and organise the building of the house to transform it into a liveable dwelling. He further says that he often saw Mr Bennett over many years working on building, landscaping and improving the property.
15. Mr Hopson deposed that on several occasions (from about 2002 or 2003 until the separation of the couple in 2005) he saw Mr Bennett working on the property, both in the house and outside establishing gardens, and was impressed with his work and his work ethic.
16. Mr Adams, an operator of a large excavator, deposed that after Mr Bennett and Lara Strauss moved into the property he (Mr Adams) did a considerable amount of work there over a number of years, including work on the road, digging trenches for septic tanks and drainage pipes, and the construction of rock and timber retaining walls. Mr Adams deposed that he observed Mr Bennett to do all the organising of materials and equipment, and that it was always Mr Bennett who paid him, mostly in cash. He says that the amount paid over the years was "substantial". Mr Adams also says that he often observed Mr Bennett doing labouring tasks as required for the work being undertaken. In cross-examination Mr Adams said that he kept no written records in relation to the work he did on the property.
17. Mr Jones, a friend of Mr Bennett from school days, deposed that when he stayed at the property for about three months (at a time when Lara Strauss was pregnant with her second child, Ishka, who was born in May 2000), he saw Mr Bennett doing a lot of work around the house (including assisting tradespersons), and paying for people to do work. He also says that over a period he repaid $15,000 he owed Mr Bennett "because he needed it to go into the house", paid a further $7,000 towards the cost of two concrete slabs for two new bedrooms, and on other occasions helped Mr Bennett and Lara Strauss to pay builders. Mr Jones says that he was happy to contribute as he spent a lot of time staying at the property.
18. Mrs Strauss deposed that after Mr Bennett moved onto the property he and Lara did further work on it. However, Mrs Strauss had no recollection of Mr Bennett making any significant contributions to the house other than the purchase of a wooden beam and a significant role in the construction of a rock wall, terracing and the laying of turf in about 2001. She says that the work carried out in 2001 was done without prior consultation, and that her husband offered to reimburse Mr Bennett upon production of receipts. She says that Mr Bennett did not produce receipts and said "don't worry about it".
19. Lara Strauss took issue with Mr Bennett's claim that he organised all the building and engineering plans and specifications. She says that she organised a draftsman to prepare plans, and that her father paid for the work. She also says that her father engaged an engineer.
20. Lara Strauss further took issue with Mr Bennett's claim that he engaged contractors. She says that in about November 1999 she engaged a Peers Gifford to build three bedrooms and a sunken lounge-room/study, and he did most of the job before a Bob Stewart (or Steward) completed the upstairs balcony and removed a central pole in the lounge-room. She says that her parents paid for all that work.
21. Lara Strauss generally denies Mr Bennett's account of his contributions of labour and money, but accepts that Mr Bennett and his friends laid turf and contributed to the cost of construction of rock walls, and also paid for a wooden beam (the installation of which permitted the removal of the central pole in the lounge-room).

Evidence concerning the alleged agreement for sale

1. Mr Bennett contends that on about 15 June 2014 he entered into an agreement with Mrs Strauss and Lara Strauss for the purchase of the one tenth interest in the land. It is alleged that Lara Strauss possessed actual authority from Mrs Strauss to make the agreement on her behalf. It was pleaded in the alternative that, if Lara Strauss lacked authority, Mrs Strauss subsequently ratified the agreement purportedly made on her behalf by her daughter. The acts of ratification relied upon are the giving of two receipts by Mrs Strauss in relation to certain monies paid by Mr Bennett.
2. The essential terms of the alleged agreement are that: 1. the purchase price was $240,000; 2. the price would be paid in four instalments of $60,000, the first payable immediately and the further instalments payable annually thereafter; 3. Mr Bennett would have the exclusive right to occupy the property during the term of the agreement; and 4. Mrs Strauss would transfer unencumbered title to Mr Bennett on payment of the final instalment of the purchase price.
3. The alleged agreement is not in writing. Mr Bennett accepts that the requirements of s 54A(1) of the Conveyancing Act 1919 (NSW) have not been satisfied. He therefore invokes the law relating to part performance.
4. The acts of part performance relied upon are Mr Bennett's going into possession on about 21 June 2014, paying the first instalment of the purchase price on about 2 July 2014, and making improvements to the property, including installing a bitumen driveway.
5. In June 2014 Lara Strauss was living at the property. It seems that the two children, Isis and Ishka, also lived there for at least part of their time. Lara Strauss was by that time married to Hendrick Hartmann. He was the owner of one of the other one tenth interests in the land, and lived on his allocated site nearby. Mr Bennett was living in rented accommodation in the locality.
6. Mr Bennett deposed that from early 2014 there were occasions when Lara Strauss told him that she was thinking of moving in with Mr Hartmann, and that if she did, the house would be available for Mr Bennett. He says that in about early June 2014 Lara Strauss told him that she was going to move out and asked him whether he wanted the house, to which Mr Bennett replied affirmatively.
7. At 8:23am on Sunday 15 June 2014, Lara Strauss sent a text message to Mr Bennett enquiring about how much notice he needed to give his landlady, and stating: We're ready…2 weeks? A month? Let's do it!! ASAP
8. At some time after 3pm on 15 June 2014 Mr Bennett went to Mr Hartmann's house. Lara Strauss was also present. Mr Bennett contends that the agreement for purchase was made in the discussion that followed. Mr Bennett deposed as follows: 39. At that meeting, Lara said to me, in words to the effect that: "The house is worth $360,000 to $400,000 but you can buy it for $240,000 because of all the work and money that you have put into it". I said in words to the effect "I am happy with that". I said in words to the effect, that "I can get $60,000 for a first payment straight away and I can then pay $60,000 per year for the next three years." Lara said, in words to the effect "I am ok with that." 40. While this was being discussed I remember that Lara and Hendrick were talking about what they were going to do with the money. The money that I paid for the house was going to go to pay for improvements to Hendrick's house where Lara was now going to live. 41. Mrs Strauss wasn't there, but Lara said words to the effect of "I'm acting for my mother. Everything that is going through me is fine by my mother. My mother will agree with anything I say. My mother's happy if I'm happy". 42. At that meeting, we discussed a boundary adjustment as half the house was situated on a neighbour's land. That was to be included in the price, Lara's mother was paying for that. It was already pegged out and surveyed at the time, with the MO [multiple occupancy] contributing $5000 towards the adjustment. That $5000 is being held by the MO as a credit against community levies otherwise payable by me at $100 per month.
9. Mr Hartmann does not specifically identify in his affidavit any discussion that occurred on 15 June 2014. However, he refers to discussions between himself and Lara Strauss about offering to sell the property to Mr Bennett. Mr Hartmann deposed as follows: 14. After about six months I discussed it with Lara again. Over a couple of days we discussed the issue of offering the house to Ian again. At one point I said to Lara words to the effect of "Ian already has equity in the house and it would be good to have Ian living next door with the kids". I was there when Lara raised this with the kids, they were both really happy with the idea of this. And then one night we discussed this further and between us we thought it was a good idea to offer the house to Ian for $240,000. Lara said words to the effect of "I need to discuss with my mother that Ian will not be able to pay it all at once". 15. At the time, we also knew that Ian did not have this kind of money readily available, and that he may need to pay us over time. As the property is on an MO, we both knew that it was not possible for Ian to get a bank loan to purchase the property. Lara also said in words to the effect of "I will also need to discuss this with my mother". 16. The next day Lara travelled to see her mother in Brisbane. Later that day Lara called me to say "yeah, mum agrees to the $240,000 purchase price and she is really happy for us to move forwards". Lara seemed very excited about it. I was too.
10. Mr Hartmann further deposed to a discussion between himself, Lara Strauss and Mr Bennett in the following terms: 18. On the same evening she came back from Brisbane visiting her mum, we had Ian over for dinner. It was only Lara, Ian and myself, the girls were not present. Lara said to Ian words to the effect that "mum has said that you can buy the house for $240,000". I could see that Ian was happy with the offer. He said, in words to the effect of "that's more reasonable, I already have equity in the house". He said straight away "I cannot pay the $240,000 in one go, I would need to pay it over time". Ian said "I will need to talk to my parents about helping with the money", and then suggested "I can pay $60,000 initially, and then $60,000 a year after that until it is paid off". Lara agreed with this, I remember she was very happy that evening, she said words to the effect of "I am happy with that, let's go ahead, when can we do it". Ian said words to the effect of "That's great. I can do that, I can get the first payment very soon". 19. Then Ian said he needs a little bit of time to organise the initial $60,000 payment. Lara said that was fine. Ian said on at least two occasions on that night "Lara, are you sure it's alright because if it is I will put my notice in". Lara said words to the effect of "Yes, let's go full steam ahead". 20. Either on that night or at some time over the next few days, Ian raised with Lara and I about the need to see a solicitor and get a contract. He said something like "I want some kind of a legal insurance because I have to move out of my other house, so something binding". We spoke about this together and decided that it was not necessary as we were all "one big family".
11. Lara Strauss deposed that in June 2014 Mr Hartmann proposed that she and the two children move in with him. This led to a discussion between Mr Hartmann and Lara Strauss in which a sale of Lara Strauss' place to Mr Bennett for $240,000 was discussed. She deposed that on about 13 June 2014 Mr Hartmann said to her words to the following effect: Why don't we sell your place to Ian Bennett for $240,000? I will have enough money to do the renovations to my house and we can give your mother $40,000 to cover the cost of the boundary adjustment. You can move in with me. We can finish the house and the girls can move in. As you are my wife you will automatically be entitled to half of everything I own. There is no need for you to be on the title with me.
12. Lara Strauss says that she agreed that it was a good idea.
13. Lara Strauss further deposed that at 8:13am on 15 June 2014 she had a telephone conversation with her mother in which she told her that Mr Bennett was willing to purchase the house and that she would be moving in with Mr Hartmann, to which Mrs Strauss is said to have replied: I am a bit lost for words. I need time to think about this.
14. Lara Strauss deposed that later on 15 June 2014 Mr Bennett came over to Mr Hartmann's house and a discussion occurred between the three of them about selling the property. Lara Strauss says that she and Mr Hartmann had been taking drugs over the course of the weekend and were intoxicated. She further says that most of the discussion was between Mr Hartmann and Mr Bennett. She says that at some point on 15 June 2014 Mr Bennett and Mr Hartmann reached an agreement that Mr Bennett would buy the property for $240,000, payable in instalments. The first instalment was to be paid in July 2014, the second instalment in September-October 2014 and the final two instalments in around April and October 2015. She says that it was also agreed between Mr Bennett and Mr Hartmann that Mr Bennett would move into the property immediately.
15. Lara Strauss denied Mr Bennett's evidence that she said she was acting for her mother. She recalls saying words to the effect: I will deal with my mother. Leave it to me. I will speak with my mother as soon as possible.
16. Lara Strauss also denied Mr Hartmann's evidence that she had (at some stage prior to 21 June 2014) travelled to Brisbane to see her mother, and upon her return told Mr Hartmann that her mother had agreed to a sale of the property to Mr Bennett for $240,000. She says that she did not see her mother until 21 June 2014 when she and her children, together with Mr Hartmann and his son, went to Brisbane. Lara Strauss gave evidence that the subject of the sale of the property was not raised on that occasion.
17. Lara Strauss deposed that she had a conversation with her mother on the telephone on 23 June 2014 in which words to the following effect were said: Lara Strauss: Ian wants to move into the house. He has to give notice. Can he move in? Mrs Strauss: This is moving too fast. I have not had time properly to think about this.
18. Lara Strauss deposed that the next time she discussed the matter with her mother was during a telephone conversation with her mother on 28 June 2014. She says that during that conversation words to the following effect were said: Lara Strauss: Can we use the money from the sale of the house to complete Hendrik's house? Until we finish the building work the kids will not be able to have their own bedrooms. The kitchen needs to be completed and the lounge room is unfurnished. I have spoken with Hendrik about this and he has assured me that I will not lose any security as I will be entitled to half of his house if anything goes wrong and he will sell the house and split the money. You will also get the $40,000.00 that it will cost for the boundary adjustment. Mrs Strauss: It looks like you and your family are finally getting on. Let's see what happens.
19. Lara Strauss says that she did not say anything in that conversation about Mr Bennett paying the purchase price by instalments.
20. Mrs Strauss deposed that in mid-June 2014 she received a telephone call from Lara Strauss in which words to the following effect were said: Lara Strauss: We are all getting on wonderfully well together if I move in with Hendrick Hartmannn it will work out better. The children will be happy. It has been decided that Ian should buy your house, it would be a perfect solution for Ian to buy your house, and he is prepared to buy it. Mrs Strauss: I have no idea about what a house up there is worth. I will have to think about it.
21. Mrs Strauss refers in her affidavit to Lara Strauss, the two children and Mr Hartmann visiting her in Brisbane on about 21 June 2014. She deposes that there was no discussion about the proposed purchase on that occasion. This is supported by evidence from Lara Strauss, but disputed by Mr Hartmann and Ms Isis Bennett. Mrs Strauss says that she received a telephone call from Lara Strauss a couple of days later in which Lara asked whether Mr Bennett could move into the house. Mrs Strauss deposed that she replied: This is all a bit sudden. What is going on?
22. In cross-examination, Mrs Strauss agreed that in that conversation she had been told that the proposed price was $240,000 and that it would be paid in instalments. She did not accept that she was told what the instalments were going to be. Mrs Strauss also said that she "asked about a legal proposal being put into effect" and Lara Strauss said she would see about that. Mrs Strauss deposed that she did not agree to do anything at that point.
23. It is reasonably clear that by that time Mr Bennett had in fact already moved into, or was at least in the process of moving into, the property, after having given notice to his landlady. There is no doubt that he had moved in by the end of June 2014.
24. Mrs Strauss deposes that on about 28 June 2014 she had a long conversation with Lara Strauss in which words to the following effect were said: Lara Strauss: If you agree to Ian buying the house can you let us have the money to finish Hendrik's house? We need to finish the bedrooms for the children and it will all work out. Mrs Strauss: It looks like you and your family are finally getting on. Let's see what happens.
25. It appears that at some point in July 2014 Mr Bennett provided, either to Mr Hartmann or to Mr Hartmann and Lara Strauss, the sum of $60,000 in cash. Of that amount, Mr Hartmann, or Mr Hartmann and Lara Strauss, retained $30,000, and the remaining $30,000 was taken by Lara Strauss and given to her mother in Brisbane.
26. Lara Strauss deposed that when she gave the money to her mother a conversation to the following effect took place. Mrs Strauss: What are you doing giving me cash? I am not comfortable accepting cash. Lara Strauss: You can just spend it. Hendrik has kept half of the money to start the work. Ian will be paying the rest of the money to us over the next year. It will all be paid by the end of next year.
27. Mrs Strauss deposed that on that occasion there was a conversation in the following terms: Mrs Strauss: What am I going to do with this money? Lara Strauss: Use it instead of credit cards Ian has paid $60,000.00 and Hendrik has kept $30,000.00 to start work on the house.
28. Mrs Strauss says that whilst she was not at that stage opposed to the proposal, she wanted to see a proposal in writing, including a timetable for payment, before agreeing to sell. She agreed in cross-examination that by that time she had been told that $60,000 was the first instalment of the price, and that three more instalments of $60,000 were to be paid in each following year.
29. Lara Strauss deposed that she had a conversation with Mr Bennett towards the end of July 2014 in which she raised the issue of having the sale documented once her mother had agreed to it. She says that, following a discussion about stamp duty (the terms of which are denied by Mr Hartmann), either Mr Hartmann or Mr Bennett said that because of the large amount of cash, a legal contract was out of the question. Lara Strauss says that during this conversation Mr Bennett asked for a receipt for the money he had paid.
30. Lara Strauss deposed that in July 2014 she called her mother and informed her that Mr Bennett required a receipt. I note that on 30 July 2014 she sent a text message to Mr Bennett in the following terms: Just organising my mum to write you a receipt for the advance deposit. It's all sweet, my apologies for the rough start…
31. Lara Strauss says that a few days after 5 August 2014 she received an envelope (addressed to Ian Bennett C/- L Hartmann), which she delivered to Mr Bennett. Mr Bennett gave evidence that inside that envelope there was a receipt in the following terms: July 2, 2014 ….. This is to confirm that I have received the sum of $30,000 from Ian Bennett, being the 1st instalment on the property at Coopers Lane Mullumbimby. MARGUERITA STRAUSS (signed)
32. Mrs Strauss could not recall in cross-examination why she wrote the date 2 July 2014 on the receipt. She suggested it may have been part of what had been dictated to her to write.
33. It seems that Mr Bennett was not satisfied with the receipt because it was not for the $60,000 that he had paid. He asked Lara Strauss to have her mother provide a receipt for $60,000. Lara Strauss agreed to do so. She says that she telephoned her mother on 23 August 2014 to request a new receipt. She says that she went to visit her mother the next day, and on that occasion words to the following effect were said: Lara Strauss: Ian wants a receipt for the full $60,000. Mrs Strauss: How can I provide a receipt for something that I do not have? Lara Strauss: That is the money that Hendrick is using for the house.
34. Mrs Strauss then provided a receipt in the following terms: Aug 2014 .... This is to confirm that I have received the sum of $60,000 part payment of the purchase price on the property at "Wirianwah" Lot 16, Coopers Lane South Main Arm 2462, for the 1/10th share belonging to myself, Marguerita Strauss.
35. Mrs Strauss deposed that she put the receipt in an envelope, sealed it, and gave it to Lara Strauss. Lara Strauss delivered the receipt to Mr Bennett. She says this occurred on about 24 August 2014.
36. By about that time Mr Bennett had arranged for the driveway of the property to be sealed, at a cost of $5,000. Mrs Strauss deposed that she did not authorise the undertaking of that work. Mr Bennett confirmed in cross-examination that he did not speak to Mrs Strauss about that matter.
37. It appears that serious problems in the relationship between Lara Strauss and Mr Hartmann emerged in the period from about late June to early September 2014. On about 26 June 2014 she moved out of Mr Hartmann's house to stay with a friend in Mullumbimby. She deposed that on a few occasions in that period she was forced to move out and stay with a friend. Mr Hartmann disputed that. Both Mr Hartmann and Lara Strauss agree that the relationship came to an end on 2 September 2014.
38. Shortly thereafter, Lara Strauss came to stay with her mother for a few days. It appears that Mrs Strauss gave the $30,000 cash to her daughter and told her to give it back to Mr Bennett. He deposed that on 8 September 2014 Lara Strauss handed him an envelope and said: Here's some money from my mother and the rest you will have to get back from Hendrick if you want it.
39. Mr Bennett says that he did not look inside the envelope, and gave it back to Lara Strauss.
40. Mrs Strauss deposed that on about 12 September 2014 she received a telephone call from Mr Bennett, during which a conversation to the following effect occurred: Mr Bennett: What is happening with Lara and Hendo has nothing to do with our deal. It should go ahead. Mrs Strauss: There was not a deal. There was no contract and no regular arrangements for sale were made. I want my house back and I want my daughter to live back in it. I am disgusted with this bag full of cash, I don't deal like that. You are going to have fun explaining it. Mr Bennett: I have it all covered, my mates will help me out. I gave $60,000 to Hendrick and I have nothing to do with how they worked it out.
41. Later, arrangements were made for the $30,000 received by Mr Hartmann to be paid to Mrs Strauss. She deposes that she phoned Mr Hartmann and requested that he "return" the $30,000 he had received. It seems that this money had not been spent, and Mr Hartmann and Lara Strauss took steps for it to be paid to Mrs Strauss. This occurred in stages between about late September and early October 2014. The money has since remained with Mrs Strauss.
42. On 24 September 2014 Mrs Strauss sent an eviction notice to Mr Bennett. He received it a few days later. The notice is in the following terms: 24/09/2014 Eviction Notice To Ian Bennett, You are hereby advised to vacate the premises of house share 4, Lot 16 Coopers Lane South, Main Arm NSW, 2482 within 6 weeks or by the 5th November 2014. As there is no lease agreement or contract of sale the owner wishes to terminate your occupation of the above-mentioned dwelling. Regards, Marguerita Strauss (Owner) Signed Date: 24th Sept 2014

The witnesses

1. Mr Bennett's account of the circumstances surrounding the acquisition of the property and its subsequent improvement was less than satisfactory. His affidavit contained significant errors, notably the assertions that in August 1997 Mrs Strauss (or her husband) had taken photographs of himself, Lara Strauss and Isis at the property and that Mrs Strauss had made notes to the effect that they were the new owners of the property. These assertions formed a basis for the contention that at around the time the property was purchased by Mrs Strauss (erroneously claimed to be in about 1997), Mrs Strauss represented to Mr Bennett that the land belonged to him and to Lara Strauss. In addition, it quickly became apparent when Mr Bennett was in the witness box that his recollection of events, particularly of the period from 1998 to 2005, was poor. Mr Bennett appeared to have a somewhat better recollection of the events of 2014, but I found some aspects of his evidence to be unimpressive - for example, his evidence about who had made an offer to him in early 2014 to sell the property to him for $350,000, and his suggestion that by 15 June 2014 Lara Strauss had already moved most of her things out of the house. Overall, I formed the view that Mr Bennett's evidence, unless corroborated by reliable evidence, must be treated with caution.
2. Mrs Strauss gave her evidence in a forthright manner, apparently trying to give honest and accurate answers to the questions asked of her. She was prepared to make concessions, including on significant matters. She conceded, for example, that by the time Lara Strauss gave her the $30,000 in cash she had been told that $60,000 was the first instalment of the price, and that three more instalments of $60,000 were to be paid in each following year. She also volunteered in her affidavit that Mr Bennett had played a significant role in relation to the construction of a rock wall and terracing, and the laying of turf. I formed a favourable impression of Mrs Strauss as a witness, and I consider that her evidence may be regarded as honestly given and essentially reliable.
3. Lara Strauss appeared to have a good recollection of the events of 1998 to 2005 concerning her relationship with Mr Bennett, and the acquisition and subsequent development of the property. She appeared to me to be trying to give an honest and accurate account of those events. Her account is further supported by a number of photographs. I think that her evidence on those matters is to be preferred to that of Mr Bennett. She also seemed to have a good recollection of the events of June to September 2014. However, I have less confidence in the evidence she gave in relation to those events, in particular the discussions in June 2014 concerning a sale of the property. Lara Strauss maintains that she was heavily affected by drugs when the sale was discussed on 15 June 2014, and in the days that followed. Whilst I am prepared to accept that drugs were taken by her (and by Mr Hartmann) over the course of that weekend, I do not think that Lara Strauss was so affected by drugs that she did not understand what had taken place. I think it is likely that Lara Strauss has exaggerated the effects of the drugs so as to downplay her role, and assist her mother's case. Her evidence that most of the discussion on 15 June 2014 about the sale was between Mr Bennett and Mr Hartmann falls, in my view, into the same category. I therefore think it appropriate to treat Lara Strauss' evidence about the events of June to September 2014, in particular the discussions about the sale of the property, with caution.
4. Mr Hartmann clearly had little recollection of events in relation to the property prior to 2002 (when he purchased his one tenth interest in the land). He seemed to have a better recollection of the events of 2014. However, one important aspect of his evidence is at odds with the evidence of both Mr Bennett and Lara Strauss. That is Mr Hartmann's evidence that on 15 June 2014 Lara Strauss travelled up to Brisbane to see her mother and returned that evening, prior to the discussion with Mr Bennett about the sale. Lara Strauss denied that she went up to see her mother on that day, and Mr Bennett gave evidence that he went to Mr Hartmann's place during the afternoon. I note that it was not put to Lara Strauss in cross-examination that she had visited her mother on that day, and neither was it suggested to Mrs Strauss that Lara Strauss had visited her on that day. I am not able to accept this aspect of Mr Hartmann's evidence. Further, it seems to me that the advancing of this evidence (whether due to error, a desire to assist the case of Mr Bennett, a friend of long standing, or otherwise) tends to undermine the confidence that might otherwise be placed in Mr Hartmann's testimony. To the extent that his evidence is contradicted by that of Mrs Strauss, I prefer the evidence of Mrs Strauss.
5. Isis Bennett swore an affidavit on the last working day prior to the commencement of the hearing. I permitted the affidavit to be read, over the objection of counsel for Mrs Strauss. Isis Bennett gave evidence that she had been trying to stay out of the matter but that she had become involved following a "nasty fight" in the previous week with her mother. Isis Bennett denied that she was giving evidence to get back at her mother or to help her father's case. Despite that denial, the circumstances in which she came to give evidence are troubling. Again, to the extent that her evidence is contradicted by that of Mrs Strauss, I prefer the evidence of Mrs Strauss.
6. The other witnesses were cross examined only briefly. I make no particular observations about the other witnesses save to note that Mr Jones, who gave evidence shortly after arriving in Sydney from the United Kingdom, was apparently tired.

Determination

1. The primary position of Mr Bennett is that he is lawfully in possession of the property pursuant to the terms of an agreement for sale made in June 2014. Although his claims for relief in respect of his contributions to the property in the period up to 2005 are pursued in the alternative, it is convenient to deal first with those claims.
2. Relief in respect of his contributions is sought on two bases, namely, an equity of the type referred to in Baumgartner v Baumgartner (1987) 164 CLR 137, and proprietary estoppel. As to the former, it was submitted that there was a joint endeavour or relationship between Mr Bennett, Lara Strauss and Mrs Strauss for the development of the property, pursuant to which Mr Bennett made substantial contributions to the property in circumstances where it was not intended that Mrs Strauss would retain the benefit of such contributions. It was thus submitted that upon the failure of the joint endeavour or relationship in 2005 when the marriage failed, it would be unconscionable for Mrs Strauss to retain the benefit of Mr Bennett's contributions. As to the latter, it was submitted that to the knowledge of Mrs Strauss Mr Bennett's contributions were made upon the basis of an expectation, created, encouraged, or acquiesced in by Mrs Strauss, that he owned the property with Lara Strauss or would come to so own the property. It was submitted that it would be unconscionable for Mrs Strauss to deny that Mr Bennett has an interest in the property.
3. Each claim is based upon the contention that at or shortly after Mrs Strauss' purchase of the property, she represented to Mr Bennett that the property and its improvements now belonged to him and to Lara Strauss, and that they were free to make whatever improvements they chose (as set out in paragraph 8 of the cross-claim).
4. To the extent that such contention rests upon the handwritten notes that accompanied the photographs taken of Mr Bennett, Lara Strauss and Isis in 1997, it must be rejected. I accept the evidence given by Mrs Strauss that she did not take the photographs and was not present when they were taken. Further, as noted earlier, I accept Lara Strauss' evidence that the photographs were taken by her sister (who was the author of the handwritten notes) at a different property.
5. The contention otherwise rests upon Mr Bennett's evidence that in about August 1997 Mrs Strauss said to him and to Lara Strauss words to the effect of: It is your property now and it is for you to make it nice.
6. Putting aside the erroneous reference to August 1997 (about one year prior to the purchase), I am in any event not satisfied on the evidence that Mrs Strauss, at any stage, said words to that effect to Mr Bennett and Lara Strauss. I do not regard Mr Bennett's evidence on this issue to be reliable, having regard to his patently poor recollection of the detail of the events of that time. I accept Mrs Strauss' evidence that she never said such words to Mr Bennett. I further accept Mrs Strauss' denial that the property was a gift to Mr Bennett and Lara Strauss. In my view, Mrs Strauss and her husband plainly wanted to provide assistance to their daughter, but there was no gift of the property to her (or to her and Mr Bennett). After the acquisition of the property in September 1998 Mrs Strauss and her husband took steps to make the property available for Lara Strauss who was at that time separated from Mr Bennett. It is clear that Mrs Strauss and her husband caused works to be carried out at their cost to make the property habitable for them. Further, I accept that after Lara Strauss moved in to the property, she started paying rent to her mother, and that this continued, more or less continuously, until 2014. I also find that the further building works subsequently made on the property after Mr Bennett had moved in were largely, if not entirely, paid for by Mrs Strauss and her husband. They also paid about $25,000 for extensions later made to the children's bedrooms. I accept Lara Strauss' evidence to the effect that her parents were adamant that they pay for the building works as "it was their house". As noted earlier, at one point during cross examination Mr Bennett accepted that Lara Strauss' parents paid for most of the improvements made in the period 1999 to 2005. In these circumstances, and bearing in mind the absence of any supporting records, I am not prepared to accept Mr Bennett's evidence that he spent about $160,000 and the equivalent of 800 full working days on improvements to the property.
7. I accept that Mr Bennett did a lot of work and incurred significant costs in relation to the landscaping that was done in about 2001. It is also likely, in my view, that Mr Bennett made some other contributions of money and labour to improvements to the property in the period 1999 to 2005. The extent of these efforts is impossible to measure with any precision on the evidence adduced. However, whatever the extent of Mr Bennett's contributions, I am not satisfied that they were made as part of any joint endeavour between himself, Mrs Strauss and Lara Strauss for the development of the property, or on the basis of any expectation, created, encouraged or acquiesced in by Mrs Strauss, that he owned the property with Lara Strauss or would come to so own the property.
8. For the above reasons, Mr Bennett's claims to relief in respect of his contributions must be rejected. I note that Mrs Strauss raised a limitation argument to the effect that s 14 of the Limitation Act 1969 (NSW) applied by analogy to Mr Bennett's claims. I do not think that is correct. In my view, the applicable limitation period is twelve years (see s 27(2)), and the claims, which first accrued in 2005, were brought within time.
9. I turn now to consider Mr Bennett's claim that an enforceable agreement for sale was made in June 2014.
10. The alleged agreement is pleaded in paragraph 21 of the cross claim. The particulars to that paragraph state that the agreement was formed during a conversation between Mr Bennett and Lara Strauss which took place at Mr Hartmann's house and in his presence on or about 15 June 2014. It is stated that Lara Strauss made various statements on that occasion including a statement to the effect that she had the full authority of Mrs Strauss to make the agreement with Mr Bennett. It was then pleaded that, in respect of Mrs Strauss' interest in the property, the agreement was entered into by Lara Strauss as agent for Mrs Strauss having actual authority to do so. It is pleaded in the alternative that, if Lara Strauss lacked such authority, the agreement was subsequently ratified by Mrs Strauss by her giving the two receipts to Mr Bennett (see paragraphs 22 and 23 of the cross claim). It was not part of Mr Bennett's pleaded case, and it was not otherwise suggested, that an agreement was reached at some time after about 15 June 2014. It was not put, for example, that an agreement was later made upon Mrs Strauss accepting an offer made to her.
11. Before dealing with the question whether an agreement was made as alleged, it is necessary to make further findings of fact concerning the events of June to September 2014.
12. It is likely in my view that on more than one occasion prior to 15 June 2014 there had been discussion (including in early June 2014) between Lara Strauss and Mr Bennett about the possibility of Lara Strauss moving out of the property to live with Mr Hartmann, and of the house thus becoming available to Mr Bennett. Mr Bennett deposes to such discussions, and Lara Strauss does not specifically deny that they occurred. It does not appear that such discussions (at least in early June 2014) extended to the possibility of Mr Bennett purchasing the property.
13. It is also likely that by 15 June 2014 Lara Strauss was ready to move out of the property and was keen for Mr Bennett to take her place. This is reflected in the terms of the text message she sent to Mr Bennett at 8:23am on 15 June 2014.
14. Lara Strauss deposed that shortly prior to the sending of that message she spoke to her mother on the telephone. She says that she told her mother that Mr Bennett had agreed to purchase the house and that she would be moving in with Mr Hartmann, and Mrs Strauss responded by saying that she would need time to think about it. I accept that a telephone conversation along the lines of that deposed to may have taken place between Lara Strauss and her mother at that time, save that it is unlikely that Lara Strauss would have said that Mr Bennett had agreed to purchase the house. There is no evidence that he had agreed to do so at that point. If Lara Strauss said anything about such a purchase, it is likely that it would have been spoken of as a possibility only, or an idea that was being considered. It does appear, from the evidence of both Lara Strauss and Mr Hartmann, that, over the preceding day or two, they had discussed the possibility of Mr Bennett buying the property. It seems that a price of $240,000 was contemplated. It further seems to have been contemplated that at least some of the proceeds of sale might be able to be put towards improvements to Mr Hartmann's property.
15. As mentioned earlier, I do not accept Mr Hartmann's evidence that on 15 June 2014 Lara Strauss went up to Brisbane to see her mother and returned in the evening, prior to the discussion with Mr Bennett about the sale. Text messages exchanged between Mr Bennett and Lara Strauss suggest that she was at Mr Hartmann's house at 2:50pm on 15 June 2014. Whilst it might have been possible for Lara Strauss to travel from the property to Brisbane and back by that time, I am not prepared to find that Lara Strauss visited her mother on 15 June 2014. I accept her evidence that she remained at Mr Hartmann's house on that day.
16. Mr Bennett arrived at the house at some time after 3:00pm. There was then a discussion about Mr Bennett purchasing the property. The discussion involved Lara Strauss, Mr Bennett and Mr Hartmann. I do not think that Isis Bennett was present on that occasion. No other witness says that she was present. Mr Hartmann was clear that she was not.
17. It is not necessary to resolve all of the conflicts and variances between the respective versions of what was said. It seems clear enough that during the course of the discussion it was suggested that Mr Bennett could purchase the property for $240,000, and Mr Bennett signified that he was content with that price, although he would need to pay it in instalments. There was agreement about that amongst those present. There is some divergence about what was then said about the instalments. I think it likely that Mr Bennett said that he could pay $60,000 within a very short period, and further payments of $60,000 each year for the next three years. On this matter, I prefer the evidence of Mr Bennett (which is supported by that of Mr Hartmann) to that of Lara Strauss. I am also prepared to accept Mr Bennett's evidence that there was discussion about the costs of completing a boundary adjustment (which was then in train), and that it was agreed that these costs would be included in the price of $240,000, such that Mrs Strauss would have to bear those costs. I consider that the price to be paid, the timing of each payment, and what was included within the price would have been matters of close concern to Mr Bennett, and I think his version of what was said on these matters is likely to be more accurate than that of Lara Strauss. I do accept Lara Strauss' evidence that in the course of the discussion it was agreed that Mr Bennett would move into the property almost straight away.
18. Mr Bennett knew that Mrs Strauss was the owner of the property. He accepted in cross examination that the property was in her name. In his affidavit he explained that although Mrs Strauss was not present, Lara Strauss said words to the effect of: I'm acting for my mother. Everything that is going through me is fine by my mother. My mother will agree with anything I say. My mother's happy if I'm happy.
19. Lara Strauss denied that she said she was acting for her mother. She says that she said words to the following effect: I will deal with my mother. Leave it to me. I will speak with my mother as soon as possible.
20. I am not satisfied that Lara Strauss said words to the effect that she was acting for her mother. That would have been a false statement. Mrs Strauss deposed that at no point did she ever authorise Lara Strauss to act as her agent in relation to the sale of the property. I accept that evidence, which was not challenged in cross examination. I do not think that Lara Strauss would have lied about that matter. Lara Strauss was favourably disposed to the idea of the sale, even enthusiastic about it. However, it is difficult to see how the making of a false statement as to the existence of authority would have served to promote the objective of the sale going ahead. I note that Lara Strauss' denial that she said she was acting for her mother was not challenged in cross examination. On this issue, I prefer Lara Strauss' evidence to that of Mr Bennett. Even if Lara Strauss had by that time raised with her mother the prospect of the sale of the property, she had not received any approval from her mother to make any such agreement. At the most, Mrs Strauss had indicated that she would have to think about the matter. In those circumstances it would be natural for Lara Strauss to say words to the effect that she would deal with her mother, and speak to her as soon as possible, about the sale. Lara Strauss is likely to have been hopeful, or even confident, that her mother would ultimately agree to a sale. I accept that she is likely to have said words to the effect of those deposed to by Mr Bennett, namely, that her mother would agree with what she said to her, and would be happy if she was happy. Lara Strauss did not deny that words to that effect were said. I think it likely that Lara Strauss gave the firm impression that her mother would agree to the sale.
21. I should note that Mr Hartmann gave evidence that Lara Strauss told Mr Bennett that her mother had said that he could buy the house for $240,000. I do not accept that evidence, which was denied by Lara Strauss and seems to be based, at least to some extent, on Mr Hartmann's understanding that Lara Strauss had been to Brisbane earlier in the day to discuss the matter with her mother.
22. It is likely that Lara Strauss spoke to her mother about the sale on or shortly after 15 June 2014. I accept Mrs Strauss' evidence that at that time she had a conversation with Lara Strauss during which she was told, amongst other things, that it had been decided that Mr Bennett should buy the house. I accept that Mrs Strauss said that she had no idea of the value of the house, and would have to think about it. I further accept Mrs Strauss' evidence (in preference to that of Mr Hartmann and Isis Bennett) that the matter was not discussed at her house on 21 June 2014, but was raised during a telephone conversation with Lara Strauss a couple of days later. On that occasion, Lara Strauss asked whether Mr Bennett could move into the house. It appears that she also told her mother that the price was $240,000 and that it would be paid in instalments. Mrs Strauss asked about "a legal proposal being put into effect" and Lara Strauss said she would see about that. I accept Mrs Strauss' evidence to that effect. Mrs Strauss did not raise any objection to Mr Bennett moving into the property. At one point in her cross-examination, Mrs Strauss seemed to accept that she had agreed to Mr Bennett moving into the property.
23. As mentioned earlier, Mr Bennett had by that time already commenced to move in, and may even have completed his move. The evidence is clear that Lara Strauss was aware of this, and indeed appears to have encouraged it. When confronted with these circumstances in cross examination, Lara Strauss said that she was "very anxious about overwhelming her mother with the whole thing" as she was "scared that she wasn't going to agree to it". She also said that she "wasn't completely honest with her mother". Those answers seemed to me to ring true. Lara Strauss (in company with Mr Bennett and Mr Hartmann) was evidently keen for the sale to proceed, but needed to secure the agreement of her mother. She had allowed matters to run ahead, even though her mother had not given her assent, and had said that she would need to think about what was proposed. Lara Strauss had managed to place herself in an awkward position, where she would have to tread very carefully with her mother. This may go some way to explain why the matter was not raised with Mrs Strauss on 21 June 2014.
24. The matter was further discussed between Lara Strauss and Mrs Strauss on about 28 June 2014. At that time, Lara Strauss asked whether the money from the sale (or some of it) could be used to finish the children's bedrooms in Mr Hartmann's house. Mrs Strauss did not explicitly agree to that, but rather said that it looked as though Lara Strauss and her family were finally getting on and "let's see what happens".
25. In about early July 2014 Mr Bennett had made arrangements to come up with $60,000 in cash. He borrowed the money from various friends. The money was provided to either Mr Hartmann or to Mr Hartmann and Lara Strauss (it is not necessary to determine which alternative is correct) shortly thereafter. Lara Strauss then delivered $30,000 of it to her mother. Mrs Strauss agreed in cross examination that by that time she had been told that $60,000 was the first instalment of the price, with three more instalments of $60,000 to be paid in each following year. I accept Mrs Strauss' evidence to the effect that whilst she was not at that time opposed to the proposal, she wanted to see a proposal in writing before agreeing to sell the property. It is likely that she made her desire for a written proposal known to Lara Strauss.
26. I accept the evidence of Lara Strauss to the effect that in about late July 2014 she raised with Mr Bennett the issue of having the sale documented once her mother had agreed to it. It appears that, for whatever reason, the idea of a written contract was not accepted by Mr Bennett.
27. However, Mr Bennett requested, through Lara Strauss, that a receipt be given to him for the money he had paid. I find that on about 30 July 2014 Lara Strauss asked her mother to provide a receipt (for $30,000), and that on 5 August 2014 Mrs Strauss posted a receipt to Lara Strauss for Mr Bennett. There is no clear explanation as to why the receipt is dated 2 July 2014. It is likely that Mr Bennett received the receipt a few days after 5 August 2014.
28. Mr Bennett then sought a receipt for $60,000. I accept Lara Strauss' evidence to the effect that she telephoned her mother on about 23 August 2014 and asked her for this second receipt, and that she collected it from her mother on the following day. This receipt was delivered by Lara Strauss to Mr Bennett on about the next day.
29. Following the breakdown of the relationship between Lara Strauss and Mr Hartmann in early September 2014, Mrs Strauss sought to have the $30,000 returned to Mr Bennett, but he declined to accept it. I accept Mrs Strauss' evidence to the effect that in a telephone conversation with Mr Bennett on about 12 September 2014 he stated that "our deal" should go ahead, to which Mrs Strauss replied that there was not a deal, and that there was no contract and no regular arrangements for sale made.
30. As noted earlier, arrangements were subsequently made for the other $30,000 to be paid to Mrs Strauss. On 24 September 2014 Mrs Strauss sent the eviction notice, the terms of which are set out at [71] above, to Mr Bennett. He received the eviction notice on about 29 September 2014.
31. I have referred above to the pleading of the alleged agreement for sale. The agreement is said to have been entered into by Lara Strauss as agent for Mrs Strauss possessing actual authority to do so or, if such authority was lacking, then the agreement was subsequently ratified by Mrs Strauss giving the two receipts to Mr Bennett in August 2014.
32. I have found that at no time did Lara Strauss have actual authority to conclude an agreement for sale of the property for her mother. It was not suggested that she had ostensible authority to do so. Mr Bennett must therefore rely upon the doctrine of ratification to overcome that want of authority.
33. In this context, ratification can give rise to an agency relationship, or at least the ramifications of an agency relationship, in circumstances where an agent professes to act on behalf of a principal although no agency relationship exists, or where the acts of an agent on behalf of its principal are outside the scope of the actual authority of the agent. This type of ratification occurs when the unauthorised acts of the purported agent or agent are later ratified by the principal. The example of an agent exceeding the scope of its actual authority may be put aside in the present case.
34. The general principle is described in P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (20th ed 2014, Sweet & Maxwell) at Article 13, 2-047 as follows: Where an act is done purportedly in the name or on behalf of another by a person who has no actual authority to do that act, the person in whose name or on whose behalf the act is done may, if the third party had believed the act to be authorised, by ratifying the act, make it as valid and effectual, subject to the provisions of Article 14 to 20, as if it had been originally done by his authority, whether the person doing the act was an agent exceeding his authority, or was a person having no authority to act for him at all. (see also G E Dal Pont, Law of Agency (3rd ed 2013, LexisNexis Butterworths) at [5.1]).
35. In Keighley, Maxstead and Co v Durant [1901] AC 240 Lord Macnaghten (at 247) described the doctrine of ratification as a fiction by which "a person ratifying the acts of another who, without authority, has made a contract openly and avowedly on his behalf, is deemed to be, though in fact he was not, a party to the contract".
36. It is necessary, in order for the doctrine to operate, that the act said to be ratified by the principal is one that was purportedly or professedly done on behalf of the principal (see Keighley, Maxstead and Co v Durant (supra) at 246-247 per Lord Macnaghten and 259 per Lord Robertson; see also Howard Smith and Co Limited v Varawa (1907) 5 CLR 68 at 82 per Griffith CJ and 84 per Isaacs J).
37. In this case, Mr Bennett claims that Mrs Strauss ratified the making of an agreement on her behalf by Lara Strauss. However, I do not think that it can be concluded that any agreement by Lara Strauss on 15 June 2014 to the terms of a sale to Mr Bennett was an agreement purportedly or professedly made on behalf of Mrs Strauss. I have not accepted that Lara Strauss said she was acting for her mother. Rather, Lara Strauss made various statements which made it clear that she would need to deal with her mother about the matter. Even if she was indicating that her mother was likely to accept whatever she put to her, the fact remains that Lara Strauss was stating that she would be seeking her mother's assent to the agreement. Any such agreement would only be made if such assent was forthcoming. I do not see this case as one where a contract is purportedly made by an agent on behalf of a principal. On this basis, Mr Bennett's claim that an agreement for sale was entered into on about 15 June 2014 must fail.
38. I should add that if (contrary to my findings) Lara Strauss had said that she was acting for her mother so that it could be said that she purportedly or professedly made an agreement on behalf of Mrs Strauss, there would have been another difficulty standing in the way of the operation of the doctrine of ratification. There can be no ratification of the act of a purported agent unless the ratifying principal has full knowledge of all material circumstances under which the act was done (see Taylor v Smith (1926) 38 CLR 48 at 59 per Higgins J; P Watts and F M B Reynolds, Bowstead and Reynolds on Agency (supra) at Article 16, 2-069; G E Dal Pont, Law of Agency (supra) at [5.8]).
39. In my opinion, it would have been necessary to at least show that Mrs Strauss was aware (when she gave the receipts) that Lara Strauss had purported to conclude a contract on her behalf as agent. That was not established. The evidence concerning the conversations between Mrs Strauss and Lara Strauss from 15 June 2014 demonstrates that Lara Strauss was seeking her mother's assent to a proposed sale, and Mrs Strauss was giving consideration to the matter. There was nothing in those conversations to indicate that Lara Strauss had already purported to conclude a binding agreement on her mother's behalf.
40. For the foregoing reasons, the agreement for sale alleged by Mr Bennett has not been established. It is not necessary to proceed to consider questions such as whether the acts of Mrs Strauss in giving the receipts in August 2014 amount to a ratification, or whether the acts of part performance relied upon by Mr Bennett (notably the going into possession and the sealing of the driveway) would be sufficient to render the alleged agreement enforceable in equity (as to which see the discussion in the judgment of Bryson JA in Khoury and anor v Khouri [2006] NSWCA 184; (2006) 66 NSWLR 241 at [73]-[90]). Finally, it is not necessary to consider Mrs Strauss' defences based on unconscionability or the Contracts Review Act 1980 (NSW), which primarily focused upon the disparity between the purchase price of $240,000 payable in instalments over three years, and the actual value of the property.
41. One aspect of Mr Bennett's cross claim remains for determination. That is his claim for restitution of the $60,000 he paid in pursuance of the alleged agreement. Counsel for Mrs Strauss effectively conceded that if the agreement was found not to exist, then Mrs Strauss would be obliged to repay the $60,000. I agree that restitution of the $60,000 should be ordered in circumstances where the money was paid as the first instalment of the price in respect of an agreement subsequently found not to have been made. There has been an entire failure of consideration for the payment (see J W Carter, Contract Law in Australia (6th ed 2013, LexisNexis Butterworths) at [38-18]; S J Stoljar, The Law of Quasi-Contract (2nd ed 1989, Law Book Company) at 224-226).
42. Interest should run on the $60,000. I think it would be appropriate for interest to run from 1 October 2014, by which time Mrs Strauss had received practically all of the money (which was then in the form of cash) and was in a position to deposit it in a bank.
43. The failure of Mr Bennett's main claims means that Mrs Strauss, as the registered proprietor of the property, is entitled to an order for possession against him. She also seeks damages, calculated on the basis of $150 per week from the time Mr Bennett went into occupation. The amount of $150 is derived from the amount of rent Mrs Strauss had previously been receiving each week from her daughter.
44. I do not think that Mrs Strauss is entitled to damages for the period up to 5 November 2014. In the context of considering a sale of the property to Mr Bennett, Mrs Strauss appears to have agreed that he could go into possession. The eviction notice later given by Mrs Strauss allowed Mr Bennett up to 5 November 2014 to vacate. I consider that damages should be calculated at $150 per week from 6 November 2014 until Mr Bennett vacates the property. This should occur by 22 April 2016.
45. It was suggested that some allowance should be made for the $5,000 spent by Mr Bennett in August 2014 sealing the driveway. However, the expenditure was incurred without reference to Mrs Strauss, and the permission she gave to occupy the property did not extend to the making of such improvements. In these circumstances, I do not propose to make any allowance in relation to that expenditure.

Conclusion

1. In summary: 1. Mr Bennett's main claims have not been made out. Mrs Strauss is thus entitled to an order for possession of the property; 2. Mr Bennett must vacate the property by 22 April 2016; 3. Mr Bennett is entitled to restitution of $60,000, plus interest from 1 October 2014; and 4. Mrs Strauss is entitled to damages assessed at $150 per week for the period from 6 November 2014 until Mr Bennett vacates the property.
2. I direct that the parties bring in Short Minutes to give effect to these reasons. The Short Minutes should be brought in within 14 days.
3. If the parties are unable to agree as to costs, I will make directions for the filing of written submissions on costs.

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: 17 March 2016