Maxted & Anor v LC Smith & Co Pty Ltd

[1] MULLINS J: The plaintiffs, Mr and Mrs Maxted, have lived on the property described as Lot 2 on RP 252240 in the County of Stanley Parish of Redcliffe situated at Narangba Road, Kurwongbah (the property) since about December 1992. The property is owned by the defendant. A director of the defendant, Mr Leslie Smith Snr (Mr Smith), was in a de facto relationship with Mrs Pearl Rose Werda from about 1978 until Mrs Werda's death in August 2002. Mrs Werda is the mother of Mrs Maxted.

[2] In their further amended statement of claim (the statement of claim), the plaintiffs seek a declaration that the defendant holds the property on trust for them and an order that the defendant transfer to them a half interest in the property. In the alternative, the plaintiffs seek an order for the sale of the property and that they receive a half share of the proceeds or an injunction restraining the defendant, its servants and agents from harassing the plaintiffs. In the amended counterclaim (the counterclaim) the defendant seeks relief against the plaintiffs based on alleged breaches of the tenancy agreement between the defendant and the plaintiffs.

[3] Each of the plaintiffs gave evidence. They called evidence from their neighbour Mr Gary Olsson, Mr Smith's house cleaner Mrs McMillan and the defendant's accountant Mr Brett Campbell.

[4] The plaintiffs' credit was in issue. My analysis of their evidence is that the plaintiffs attempted to convey their recollection of conversations and events as truthfully and accurately as they were able, having regard to the length of time that has elapsed since they began to live on the property, but Mr Maxted was less reliable than Mrs Maxted because of his tendency to exaggerate. This was particularly so in relation to the extent of his contribution to the upkeep of the property. A good example of that was his evidence in respect of "wattling". Mr Maxted described wattling as slashing wattle that had not died after being poisoned. He said that it was done during three months of each year and that he spent four hours per day on wattling and he explained that he was referring to a week of five days. He conceded (at Transcript p55) that he did not spend four hours every day in a five day week, as he might do it three days in one week, four days the next, but then in the following week it might only be one day. When he was asked what was the average time he spent each week during the period that wattling was done, he said 20 hours per week, making 80 hours per month and 240 hours for three months. As the area of the property of 24.6 hectares, another exaggeration was that Mr Maxted said that he would go over the whole property once a week, looking for problems (at Transcript p 56). For the same reason, it was still exaggeration when Mr Maxted said in cross-examination (at Transcript p 97) that he would walk over the property every two to three weeks. Mr Maxted was also defensive about his contributions to improving and maintaining the property. I indicate in these reasons those specific aspects of Mr Maxted's evidence that I do not accept as reliable, because of his tendency to overstate the position.

[5] The defendant relied on the evidence of Dr Cynthia Marnane to explain why Mr Smith was not called to give evidence on behalf of the defendant. Dr Marnane is a general medical practitioner who has been treating Mr Smith since 2005. Although Dr Marnane considered that Mr Smith had testamentary capacity on 28 May 2007, she considered that there had been cognitive deterioration since that time. Dr Marnane assessed Mr Smith on 6 May 2008. His MMSE score was 15 out of 30 which was indicative of moderate cognitive impairment. Dr Marnane has seen Mr Smith each month since March 2007. She described the physical ailments from which Mr Smith suffers. When he was hospitalised in March 2008, it was noted that Mr Smith had problems with short term memory and some mental processing. He had been on anti-depressant medication for some time.

[6] Although Dr Marnane could not be precise about the onset of Mr Smith's memory difficulties, she expressed the opinion that his recall of past events was unlikely to be reliable and that he was unfit to give evidence about past events for that reason. The affidavit that was sworn by Dr Marnane (exhibit 25) and her further oral evidence provided a good explanation for why the defendant did not call Mr Smith to give evidence. It was therefore appropriate that the plaintiffs did not seek to make any submission against the defendant based on Mr Smith not being called to give evidence.

[7] The defendant called evidence from two of Mr Smith's children, Mr Raymond Smith (Raymond) and Mrs Noeline Vanessa Jones (Vanessa).

[8] Mr Maxted was born in 1948 and Mrs Maxted was born in 1944. They were married in 1979. The plaintiffs sold one property at Everton Park in 1980 and purchased another property in Everton Park where they resided until they sold it in or about 1990.

[9] After the sale of that property, the plaintiffs rented a house property on about two acres of land at Trouts Road, Stafford Heights initially for a period of six months. The plaintiffs were considering the purchase of acreage for a residence. They had funds for that purpose from the sale of the Everton Park property and a capacity to borrow some funds from Mr Maxted's parents. Mr Maxted had a strategy to improve their financial position by purchasing a more valuable property for their next residence than the property they had last sold. They started inspecting properties available for purchase. They continued renting the Trouts Road property on a month to month basis for about $200 per week.

[10] The plaintiffs were particular about the presentation of any property they lived in. Even though the house property at Trouts Road was rented, Mr Maxted went to a great deal of trouble to present the yard as well as he could. The owners of the Trouts Road property were so grateful for the plaintiffs' care of their property, the plaintiffs were given a rebate of a few weeks rent when they eventually left.

[11] Mrs Maxted had a close relationship with her mother and, as a result, the plaintiffs frequently socialised with Mrs Werda and Mr Smith. Mr Maxted considered that he and Mr Smith became friends. Mrs Maxted considered that Mr Smith was like a stepfather to her.

[12] Mr Smith was born in 1924. He was a builder and had success as a property developer. Mr Smith had been married and there were three children of that marriage, Mr Leslie Smith Jnr, Raymond and Vanessa.

[13] In July 1990 the defendant purchased the property. The property contains about 24.6 hectares and is improved with a highset home. The defendant rented the house on the property (and the house yard) to Raymond until late 1992 for $160 per week. Mr Smith had wanted to convert the downstairs room of the house into an entertainment area or guest room. This proposal was raised by Mr Smith at the commencement of the tenancy in favour of Raymond, but Raymond was unhappy about it and Mr Smith did not undertake the renovation that he was considering at that time. According to Raymond, Mr Smith and Mrs Werda did visit the property whilst Raymond and his family lived there. They visited about every second weekend, but did not stay overnight.

[14] Mr Smith complained to the plaintiffs about how Raymond looked after the property. Raymond was unaware of any complaints his father had about his tenancy of the property and made the point in his evidence that he was responsible only for the house and the yard immediately surrounding the house. Mr Smith suggested to the plaintiffs that they should rent the property when Raymond left it and look after the property for him. He conveyed to the plaintiffs that he wanted to rent the property to someone he could rely on.

[15] Raymond eventually left the property in or about December 1992, because it was too far for him to travel to work. The plaintiffs moved to the property on the day that Raymond and his family moved out. The plaintiffs rented the house and all the land that comprises the property for $160 per week, and understood that they were to look after the house and the adjacent yard as they would a residential property, but supervise and take care of the balance of the property for the defendant. The defendant admits that the arrangement when the plaintiffs initially moved into the property was that they would take care of the property and pay rent of $160 per week and that Mr Smith and Mrs Werda would stay at the property on weekends and at other times when they wished to do so.

[16] The plaintiffs continued looking at acreage properties after they moved to the property with a view to making their own purchase of acreage. The plaintiffs had Mr Smith look at some of the acreage properties they were considering both before and after they moved to the property. The plaintiffs respected Mr Smith's success as a property developer and sought his advice. The plaintiffs recalled that Mr Smith always found some disadvantage with each acreage property they inspected with him. In cross-examination, however, Mr Maxted accepted (at Transcript p 101) the suggestion put to him that Mr Smith was merely giving general advice about the properties he inspected with Mr Maxted.

[17] The plaintiffs threw themselves into cleaning up the house on the property and the adjacent yard and showed any tradesmen sent to the property by Mr Smith where they were to work and reported back to Mr Smith on the activities of those tradesmen. Mr Smith went ahead with his plans for making a bedroom out of one of the downstairs rooms of the house. Mr Smith and Mrs Werda stayed most weekends at the property. About three years after moving to the property, Mr Maxted sustained an injury in the course of his employment at the airport as a baggage handler for which he received compensation. He left this employment.

[18] The plaintiffs had the same approach to the presentation of the house and the adjoining yard, as they had for their previous residences. They took pride in presenting them well. Mr Maxted accepted in cross-examination (at Transcript p 100) that the plaintiffs wanted to "create a very good impression" on Mr Smith and Mrs Werda about the manner in which they looked after the property. Mr Smith also accepted that he did jobs at the property without being asked to do so by Mr Smith. Mr Maxted explained (at Transcript p 100):

"Mr Smith, had a view that people did something or showed what they did do first before there was - there was any further discussions on your future. In other words, you had to show you at least did something on your own behalf and his - his idea was you showed first and you discussed future at a later date. Your work first showed that you had initiative to do something, without being told to do it."

[19] Mrs Maxted was a director of the defendant from about 1991 until about 2001. In that capacity, she signed documents at the request of Mr Smith. Mrs Maxted was given the use of a car belonging to the defendant which she used to drive her mother and Mr Smith to medical appointments, for errands for her mother and Mr Smith and for personal use. The defendant did not dispute the assistance that was provided by Mrs Maxted to her mother and Mr Smith, although Vanessa's acknowledgement was begrudging (at Transcript p 219).

[20] Mr Smith had some person complete Part 1 of a residential tenancy agreement under the Residential Tenancies Act 1994 (RTA) which provided for a tenancy of the property in favour of the plaintiffs for a term of 20 years commencing on 22 October 1996 for $160 per week. The agreement was dated 22 October 1996. It was signed by Mr Smith on that day. The witness to his signature was not identified in this proceeding. Mrs Maxted signed the agreement on 22 October 1996 in the presence of Mrs McMillan. Mrs Maxted knew that she was signing a lease of the property as tenant, but was not aware of the details of the lease at the time. The plaintiffs were not provided with a copy of that tenancy agreement at that time. Mrs Maxted said that Mr Smith said that he needed the lease for taxation purposes. As Mr Campbell confirmed in his evidence, the defendant's taxation obligations in relation to the income from the property were the same, whether or not there was a lease signed by the plaintiffs.

[21] During the first few years that the plaintiffs were on the property, Mr Smith had some of his trotting horses "spelling" there. He did not continue with his interest in trotting and the horses were taken away from the property. One of the neighbours, Mr Olsson, approached Mr Maxted about agisting his Clydesdale horses on the property in exchange for Mr Olsson using his tractor/slasher to slash the paddocks that were used for his horses once each year. Mr Maxted referred Mr Olsson to Mr Smith who agreed with this arrangement. Mr Olsson said that after dealing with Mr Smith for a while, Mr Smith told him to deal directly with Mr Maxted in relation to the property.

[22] Mr Smith had a bout of ill-health in 2000 and Mrs Werda's health also declined from about that time. Their visits to the property became less frequent and then stopped.

[23] Mr Campbell received a handwritten note from Mr Smith dated 10 May 2002 which was not signed, but Mr Campbell recognised the handwriting as that of Mr Smith. The note stated:

"Will you please extend the lease on my property at 417 Narangba Road Kurwongbah 4503

The lease will include the house and the land 24.61Ha

The lease of the property can not be transferred to anybody else, and the house or land can not be leased or rented to anybody else.

The use of the house and land is for the sole use of the present tenants"

Mr Campbell did not do anything in relation to that request. There is no suggestion from the plaintiffs that the proposal in this note had been conveyed to them by Mr Smith.

[24] The last time that the plaintiffs saw or spoke to Mr Smith was on the day of Mrs Werda's funeral. Vanessa assisted Mr Smith with the management of the defendant after Mrs Werda's death. It is remarkable that after the relatively close relationship between the plaintiffs and Mr Smith during the time that Mrs Werda was alive, even allowing for some drawing away on Mr Smith's part with his ill health from 2000, that there was no personal contact whatsoever between Mr Smith and the plaintiffs after Mrs Werda's funeral.

[25] On an occasion shortly after Mrs Werda's death, when Mrs Maxted had telephoned to speak to Mr Smith, but spoke to Vanessa instead, Mrs Maxted referred to the fact that the plaintiffs had a lease of the property. Vanessa searched Mr Smith's home office for a copy of the lease. On that occasion Vanessa found a handwritten, unsigned and undated lease which she recalled was in favour of the plaintiffs for a term of 30 years at a rent of $160 per week. That particular document has since been lost. Vanessa stated that Mrs Maxted said that they had a lease for 30 years. Mrs Maxted cannot remember saying that to Vanessa. Mrs Maxted said that she was told by Vanessa that the lease went to 2013. Vanessa said that in that telephone conversation that Mrs Maxted also referred to having a lease for 20 years. The difference in recollection about this telephone call is not determinative of any issue in the matter. After this telephone contact, Vanessa did not attempt to make any contact with the plaintiffs, until the issue of the clearing of the boundary with the Olssons' property arose.

[26] When Mrs Maxted prepared her statement dated 27 May 2005 (exhibit 15) for the Small Claims Tribunal hearing about the tenancy, she still did not have a copy of the lease, but obviously worked on the basis that the term was about 20 years. In her statement, Mrs Maxted calculated the expiry date as "sometime in 2013", with a commencement date of "probably 1993". Although the plaintiffs never had a copy of the tenancy agreement until 2005, it is reasonable to infer that Mr Smith was their source of the information that the tenancy was for a lengthy term in the order of 20 years. As to the unsigned and undated lease that was found by Vanessa in the office, it is a matter of speculation as to when it was prepared and why it was not signed. It therefore cannot assist in dealing with the plaintiffs' claim.

[27] In 2004 Mr and Mrs Olsson wished to replace the fence on the common boundary between their property and the property and to make a fire break along the fenceline. Mr Olsson described the fence that was on that boundary as having been in place when he moved to his property over 30 years ago. Mr Olsson said that he had maintained it to a certain extent, but when he obtained permission to run his horses on the property, he did not bother to maintain the fence and, because it was so old, it deteriorated very quickly. Mr Olsson described the posts as being rusted off, the wire was rusted and broken and the only parts of the fence that were standing were the sections that were held up with trees growing through it. Mr Maxted explained that, apart from the dilapidated boundary fence, there was an electric fence which was a wire that was electrified with batteries that could be used to keep horses on either property.

[28] Mr and Mrs Olsson were proposing to undertake similar work in relation to the common boundary between their property and the property and the boundary between their property and the neighbours on the other side of their property. Mrs Olsson made inquiries with the Department of Natural Resources, Mines and Energy and the Pine Rivers Shire Council about the requirements that had to be met in order to undertake such works on the three properties. She received a letter from the Department dated 29 June 2004 (exhibit 20) that dealt with the requirements for clearing native vegetation on the properties.

[29] The Olssons made an application to Pine Rivers Shire Council to remove trees on their property for the purpose of fence maintenance and bush fire management. The trees were within a tree preservation area. The Council wrote to Mrs Olsson on 10 October 2004 in response to the application (exhibit 21). That letter specified that a maximum width of up to 10 metres could be cleared for fencing for bush fire purposes and to allow access for machinery. For bush fire maintenance within the property, the letter specified "a 10m wide track (maximum width) linking neighbouring properties is to be maintained as a bushfire management line". That letter also noted that approval (where applicable) for removal of trees from the property and the property at 373 Narangba Road would also be issued.

[30] The Council, through its enterprise Pine Water, was brought into the negotiations for clearing along the back boundary between the properties and Lake Kurwongbah. Mr Olsson was able to produce a bundle of correspondence involving Barry Winn Earthmoving Pty Ltd and Pine Water in relation to quotations for clearing the Council land at the rear of the properties (exhibit 22). Although Mr Olsson was unable to produce any documents from the fire brigade, he gave evidence that ultimately the clearing was approved, as a result of the involvement of the fire brigade. Mr and Mrs Olsson had also obtained a quote from Kevin King for re-fencing the boundary between their property and the property. The quote dated 17 October 2004 was for a fence of 465 metres in length. Mr King also provided a quote dated 14 November 2004 for 1,190 metres of fencing for the rest of the boundary fences between Pine Water and the property (exhibit 27).

[31] A quote was obtained from Barry Winn Earthmoving Pty Ltd on 10 November 2004 (exhibit 17) for clearing five metres either side of the boundary fence between the Olssons' property and the property. The quote was for $950 for the "Maxted" side of the fence. Mr Maxted said that the plaintiffs intended paying for their share of the clearing and the new fence. On 11 November 2004 Mr Maxted spoke to Mr Brett Campbell at least about issues with the Council regarding the property and that he was not in contact with Mr Smith.

[32] Mr Campbell passed onto Vanessa the inquiry he had from Mr Maxted. As a result Mr Smith sent a letter dated 15 November 2004 to the plaintiffs (exhibit 19). In that letter Mr Smith directed the plaintiffs to correspond with the defendant's managing director whom he identified as Vanessa. As a result of similar instructions that Mr Campbell received from the defendant, Mr Campbell sent a letter dated 15 November 2004 to the plaintiffs (exhibit 16) confirming that all maintenance issues and Council matters relating to the property should be notified to the defendant.

[33] The works that Barry Winn Earthmoving Pty Ltd had quoted to undertake on the property were carried out on the plaintiffs' instruction and without the authorisation of the defendant. Although Mr Winn's quote was for clearing five metres on each side of the boundary, Mr Olsson stated that the maximum that was cleared on the property was three metres out from the boundary, but he acknowledged in cross-examination that he may have been mistaken. Mr Maxted stated that the clearing was four metres in width on the property from the boundary with the Olssons' property. After the clearing work along the boundary between the property and the Olssons' property had been done, the plaintiffs received the letter dated 15 November 2004 from Vanessa and the works on the property did not continue and the fence has not been constructed. When necessary, the electric fence is still available. The plaintiffs paid an account dated 23 November 2004 for the sum of $825 from Barry Winn Earthmoving Pty Ltd for clearing, burning and transport (exhibit 17).

[34] Mr Maxted said that for the fire break some (but not many) mature, established trees were taken down (at Transcript p 63). Mr Olsson explained that the Council marked trees with tape that were not allowed to be cleared, so that the scrub between the large trees was cleared. He said that only small trees (about six inches in diameter) were cut down, as the trees were dense along the fenceline and that had affected the growth (at Transcript pp 167-168). Mr Olsson also said that when he moved to his property 30 years ago, that part of the property along the fenceline with his property had been cleared and that it had been slashed up to the fence in the majority of places for years. Raymond's evidence on the existence of trees at the fenceline was in general terms and did not carry any weight, as he had last seen the property about 12 years before the clearing was done. No evidence relevant to the condition of the property in the vicinity of the boundary with the Olssons' property in November 2004 before the works were done was adduced by the defendant.

[35] Mr Olsson gave evidence that the remnants of the old fence on his boundary with the property were stacked up and burnt by the fire brigade. Mr and Mrs Olsson provided the plaintiffs with a letter dated 26 November 2004 which was passed onto the defendant (exhibit 26). The letter stated:

"Respectfully we advise that the boundary fence between our properties requires replacement.

The old fence has been removed; the bulldozing along the fence line has been done; and the waste from this process has been burnt - except the waste from the old fence, which is on our property awaiting removal by the fencing contractor.

We have opted for a cheap split post & 4 strand barb wire fence. An example of this fence can be viewed from the footpath in front of 373 and 393 Narangba, your two southern neighbours.

The quote has been given to Bob Maxted to forward with this note to you.

Please peruse this information and contact us at your earliest convenience, as Council, bulldozers & fencers are currently at work on these properties."

[36] The fencing contractor, Mr Kevin King, prepared a report dated 24 December 2004 (exhibit 12) as to the state of the relevant fence:

"With regards to the boundary fence between 417 and 393 Narangba Rd:

This fence was completely buggered and needed replacing. The fence was totally wrecked and never did hold stock. It was a steel picket fence, and of all the steel pickets, only three were still of average condition and useable. All the rest were rusted off at ground level. The few wooden posts and stays were eaten out by white ants and were rotten.

There were more breaks in the fence than places which had wire between pickets, and in several places the wire was down on the ground and half buried in the dirt for 15 - 20m stretches.

There is no way this fence would have been able to have been fixed and even if it was, because of the broken and rusted pickets, it would not have handled any pressure from stock whatsoever. A total replacement was the only option.

If any further advice is required, I am available to discuss the matter further. If anyone wants to look at the old fence parts, I have not as yet disposed of them, and they can be looked at if you come in the next week or so."

[37] In December 2004 the defendant appointed a real estate agent to be its agent for the purpose of the tenancy agreement. By letter dated 22 December 2004 the agent incorrectly notified the plaintiffs that the rent had increased. Between 22 December 2004 and 18 December 2006 the defendant issued 19 separate notices to the plaintiffs comprising notices to remedy breach, notices to leave and entry notices. The defendant wanted the plaintiffs to rectify the clearing and the removal of the fence. Vanessa conveyed in her evidence her concern about the failure of the plaintiffs to consult the defendant about the works.

[38] Mrs Maxted made the statement dated 27 May 2005 (exhibit 15) for the purpose of proceedings that were brought by the defendant against the plaintiffs. It was after the making of that statement that a copy of the signed tenancy agreement (exhibit 18) was located by the defendant.

[39] In June 2006 Mr Smith ceased to be the managing director of the defendant and that role was taken over by Vanessa.

[40] This proceeding was commenced on 21 December 2006. The plaintiffs have remained in occupation of the property, paying the rent of $160 per week reserved under the tenancy agreement, pending the determination of this proceeding. Mr Maxted accepted that the current market rent of a house on acreage in the vicinity of the property was greater than $160 per week and would not have been surprised at a rent of $500 per week. Mr Maxted also accepted that rent fixed at $160 per week for a period of 20 years without any increase was a good deal for the plaintiffs. The parties tendered valuation reports (exhibits 1 and 2) which show that the property has a substantial value. The plaintiffs did not adduce evidence as to what they did with the funds they had available between 1992 and 1996 for the purchase of an acreage property.

[41] The plaintiffs' claim for equitable relief in relation to the property is based on equitable estoppel arising out of representations that the plaintiffs claim were made by Mr Smith on behalf of the defendant to them and caused them to act to their detriment. The plaintiffs rely on the exposition of the principles for relief based on equitable estoppel set out in the judgment of McPherson J (as his Honour then was) in Riches v Hogben [1985] 2 Qd R 292, 300-301 which was referred to with approval in Giumelli v Giumelli (1998) 196 CLR 101, 121-122 [35].

[42] The issues that the plaintiffs' claim based on equitable estoppel raises include:

(a) what, if any, representations were made to the plaintiffs by Mr Smith;

(b) what expectation the plaintiffs held, as a result of any such representations;

(c) whether the plaintiffs' expectation arose reasonably from the representations;

(d) whether the plaintiffs relied on those expectations to their detriment.

[43] In relation to the tenancy agreement, the defendant's counterclaim raises the following issues:

(a) what was the extent and nature of the works undertaken or authorised by the plaintiffs on the boundary between the property and the Olsson property in November 2004;

(b) did the plaintiffs breach the tenancy agreement, as a result of the carrying out of those works;

(c) what should be the consequence of any such breach;

[44] The plaintiffs' claim was pleaded on the basis that the plaintiffs moved to the property partly in reliance on representations made by Mr Smith that their tenancy of the property would prove advantageous to them (paragraph 31 statement of claim). The evidence that was adduced by the plaintiffs, however, did not support any claim that the move by the plaintiffs to the property to take up residence was as a result of their reliance on representations made by Mr Smith about future benefits they would obtain from the property. In fact, Mr Maxted said (at Transcript pp 40-41) that "And initially there was no discussion on any future happenings of any financial (sic) other than we pay $160 a week rent directly to him."

[45] The plaintiffs' claim was also pleaded on the basis that Mr Smith expressly requested them not to purchase their own acreage property (paragraph 42(i)(c) statement of claim). The plaintiffs' evidence does not support a finding that Mr Smith made an express (or an implied) request that they not purchase their own acreage property.

[46] Mr Maxted gave evidence of statements made to him at various times by Mr Smith in relation to the property. When the plaintiffs were still looking at acreage to purchase for themselves after having lived at the property for two or three years, Mr Maxted described what Mr Smith said in these terms (at Transcript p38):

"Well, he said that - needed somebody longer to stay on the property because we were doing a good job and he approached me working out some further arrangement that I was to stay longer at Kurwongbah and there might be further business dealings that we might have in the future."

Mr Maxted was then asked by his counsel about anything that Mr Smith said about the advantages for the plaintiffs in staying at the property and what he told Mr Smith about his strategy of building up capital:

"Did he say anything about the advantages of - and disadvantages of your staying at Kurwongbah as opposed from buying your own property?-- He would always - he would - he would comment to me or make a statement that, 'Why do you want to go out and buy your own house when we can come to some arrangement on - on this property?

All right. And did you explain to him about your strategy, building up capital and so forth?-- I, at the time, said after two or three years of showing what I and Nan could do on the property and Les Smith agreeing and saying that it was what he - the direction he wanted the property to go in, that I said, 'I really need to go on my way and buy my own property.' At that - I said that to him and Rose together and independently."

[47] Mr Maxted gave evidence about a conversation that took place underneath the house on the property, when Mr Smith, Mrs Werda and Mr and Mrs Maxted were present. Mr Maxted said that it was about three or four years after they commenced residing at the property and Mr Maxted said (at Transcript p 42):

"I - I raised the - I raised the - the point of I really have - we have to leave this property and buy our own. We cannot - we cannot go any longer renting because there was no future for us."

Mr Maxted said that Mr Smith responded with "Leave it with me, I'll discuss some - I'll discuss something with my accountant, Brett Campbell."

[48] Mr Maxted gave further evidence-in-chief on the conversation he had with Mr Smith after having lived on the property for about three years (at Transcript pp 73-74):

"Well, when did the conversations start about whether or not you were to stay there for a long period?-- After about three years, we were still doing what he considered benefit for all of us to live there, and he - when I raised again that we had to make some agreement on something about our future, he let us more and more-----

No, you have got to tell us what he said?-- He said, 'Don't worry about the future. We'll work something out at a later date.'

All right. Did you suggest to him that you might leave the property?-- Yes, I did.

And what was his response to that?-- His response was, 'I don't want you to go. You're doing a good job.' And, 'Keep doing what you're doing and we'll get together and talk about it at a later date."

[49] In response to a question from his counsel about statements made to him by Mr Smith in the period of a couple of years before Mrs Werda died, Mr Maxted stated (at Transcript p 75):

"All - when the matter was raised about our future, all he would say is, 'Stop worrying. There's nothing to worry about. I have everything under control.', and , 'There will be enough money left to buy family - company assets.'"

Mr Maxted then said that nothing was said beyond that. He did not identify the occasion on which such statement was made. Mr Maxted was asked to explain what he understood by this statement. He gave the following answer (at Transcript p 76):

"I took that to have meant that there would be sufficient money left in either - in what we thought would be a will to that in his business - there would be money left to either Rose or Nan to buy company assets which we took at that stage, living in the house, that that was conveyed to us - that that's - if we wished to do, that's what would happen."

Mr Maxted did not refer to any other statements made by Mr Smith that supported Mr Maxted's interpretation of Mr Smith's statement. Mr Maxted's interpretation was unconvincing.

[50] Mr Maxted accepted that the lease of the property was signed by Mrs Maxted after they had requested Mr Smith for "some form of ... paperwork for our future in that property" (at Transcript p 114). Mr Maxted also accepted, in cross-examination, that the lease for 20 years was satisfactory to the plaintiffs when that was signed, because they had tenure (at Transcript p 114).

[51] Mr Maxted also referred to discussions that he had with Mr Smith after the lease had been signed that were about how Mr Smith would develop the property. Mr Maxted stated (at Transcript p 67):

"As - after the initial signing of the paperwork, which - I have stated I didn't see, we had discussions - as I did more work on the property, he was more and more inclined to say, 'I'm happy with what you are doing', and we would have - we would have conversations about that particular property in the future on - on its development capabilities and how you would set the property up off the - off the main road. The main road is an asset to a property, and if - if you can run direct line roads off the property, you have less land lost and it is less costly to do. So, we had conversations over the years on - if in future the property was ever to be developed on how he would approach it."

[52] Although not a request by Mr Smith that the plaintiffs not purchase their own acreage property, Mrs Maxted did give evidence that Mr Smith made statements encouraging the plaintiffs to stay on the property, rather than buying their own property, commencing from the time that Mr Smith was accompanying the plaintiffs to look at properties for sale (at Transcript pp 130-131):

"Did your taking up occupation of this property-----?-- Mmm.

-----mean that you changed your mind about buying your own house?-- Not at first. When we moved in we were still thinking about it, buying a property.

Did you still look at other properties after you moved there?-- Yeah.

What did he say about those properties?-- Well, they were either too flat or flooded, flooded area.

Yes?-- You know, just general things, too much work to be done and-----

And what did he say about the alternative, the real alternative staying on Narangba Road, what did he say about that?-- Yes, he said he'd like us to more or less stay on the property and look after it and we'll be well - well, I'd be well taken care of.

Well, could you say that again please? Who did he address this to you? To you?-- To me because-----

To you personally or you and your husband?-- My husband as well.

Mmm. Just tell us what he said?-- More or less said to stay with - on the property and - and rent, we'd be better off renting and stay on the property and look after it and we'd be well taken care of.

You'll be well taken care of. All right?-- Or Robert and I would be taken-----

What did you take that to mean?-- Well, we just stay there, we just kept on staying, you know. Every time we discussed it with him he'd just turn and say, 'I don't know what you're worried about. I told you, Bob, you'd be well taken care of.'

All right. Okay. Now-----?-- What I don't know, you know. He just said, 'You'll be well taken care of and there'll be enough left to buy a company assets.' That's all it was.

When was the company assets mentioned?-- Oh, that was mentioned when - probably about - oh, it would have been around about 2000 - 1996, 97."

[53] Mrs Maxted's recollection of Mr Smith's statements about the benefits for the plaintiffs in staying on the property were related to their renting the property. It is notable that there is very little detail in the statement that Mrs Maxted recalled Mr Smith making about buying "company assets", that what she recalled about that statement does not support Mr Maxted's interpretation of the statement on the same topic that he attributed to Mr Smith and that she ultimately put the timing of the statement around the time that the lease was signed.

[54] When Mrs Maxted was asked to recall the first conversation involving Mr Smith at which she was present in which some mention was made of the plaintiffs' future, Mrs Maxted responded that she could not give a date for that conversation as "it just come up every so often". She then said (at Transcript p 139):

"And I asked about our future and everything like that, and he said, 'I don't know what you're worried about. Everything's okay. You don't have to worry about a thing."

[55] Mrs Maxted accepted in cross-examination that the tenancy agreement was entered into, as a result of the issue raised by the plaintiffs with Mr Smith about their future in relation to the property (at Transcript p146):

"But there was one issue you and your husband were concerned about, and that was in relation to whether or not you would buy a property of your own?-- Yes.

And so you are aware, are you not, that your husband raised this matter with Mr Smith?-- Mmm.

And you accept, do you not, that as a result of those discussions, Mr Smith, on behalf of the company, signed this rental agreement-----?-- Mmm.

-----with you as a tenant for and on behalf of you and your husband as tenants?-- Yes.

And that was a direct result, as it were, of the pleas or the discussions your husband had had on both of your behalfs with Les about - you were concerned about your tenure or your future; is that right?-- Yes."

[56] On the basis of the plaintiffs' evidence, it was about three years after they had been renting the property that statements were made to them by Mr Smith in response to the concerns they raised about their future and that they might purchase their own property and therefore leave the property. I will refer to the time at which these statements were made by Mr Smith as "the critical time". These statements were to the effect that the plaintiffs did not need to worry about the future or would be "taken care of" and created an expectation that the defendant would take action to give the plaintiffs certainty about their future in relation to the property.

[57] Although the plaintiffs did not receive a copy of the tenancy agreement from Mr Smith at any time, they were aware that they had entered into a lease of the property at the same rental that they had been paying from the commencement of their occupation of the property. The plaintiffs did not complain to Mr Smith in terms that the lease was not sufficient or satisfactory. After the tenancy agreement was executed, both parties proceeded on the basis that the tenancy agreement was effective and gave the plaintiffs the benefit of the long term lease of the property. The plaintiffs accepted what was offered by the defendant by way of the tenancy agreement. The plaintiffs did not continue their search for an acreage property to purchase.

[58] The plaintiffs allege in paragraph 49(d) of the statement of claim that over the period 1992 to 2002 Mr Smith told the plaintiffs repeatedly and consistently that "after he went there would be enough money left to them to buy assets in the company". The only evidence that was relevant on that aspect was the evidence of Mr and Mrs Maxted about a statement made by Mr Smith about buying company assets, but without any detail or other supporting evidence that would enable a finding to be made in accordance with paragraph 49(d) of the statement of claim.

[59] The expectation that is relevant was that held by the plaintiffs at the time they did the acts relied on as detriment. The expectation created by Mr Smith on behalf of the defendant did not arise on the plaintiffs' evidence until after they had resided on the property for about three years and they wanted to make a decision about whether to pursue their dream to purchase their own acreage property. It is also clear from Mr Maxted's evidence of wanting to impress Mr Smith with his efforts in looking after the property that, at least, Mr Maxted had the idea that the plaintiffs might be able to gain some benefit from Mr Smith by proving themselves to be worthy of receiving such a benefit. Mr Maxted was opportunistic in his approach to impressing Mr Smith.

[60] The expectation that the plaintiffs claim they had as a result of the statements made to them by Mr Smith is pleaded in paragraph 43 of the statement of claim in the following terms:

"(a) if the plaintiffs remained as caretakers they would be granted an interest in the Narangba Road property;

(b) the value of such interest in the Narangba Road property would be such that they would not be disadvantaged materially or financially if they did not buy their own property as they had expressed intentions to Mr Smith of so doing."

[61] The difficulty about the expectation, as pleaded, is that it relies on a representation that the plaintiffs allege (but is not established by the evidence) that if they stayed looking after the property, they would not have to buy their own property. In the absence of proof of such representation, there is no basis for that part of the expectation pleaded in paragraph 43(b) of the statement of claim. That leaves the pleaded expectation as one that if the plaintiffs remained as caretakers of the property, they would be granted an interest in the property.

[62] When the plaintiffs at the critical time sought a commitment from the defendant about their continued occupation of the property, they were granted a long term lease of the property at the same rental that they had paid since moving to the property. In view of my conclusion that there was acceptance by the plaintiffs of the lease that the defendant was prepared to grant them, I am not satisfied that the plaintiffs did, in fact, have an expectation, after entering into the lease with the defendant, that if they remained as caretakers of the property, they would be granted a greater interest in the property. There was wishful thinking on their part that such a benefit might accrue to them, but I do not consider that was their expectation after entering into the lease.

[63] Even if the plaintiffs did have an expectation after entering into the lease that if they continued looking after the property, they would be given a greater interest in the property, I am not satisfied that such an expectation was created by the statements made to them by Mr Smith.

[64] It is unnecessary to consider the issue of detriment, because of my conclusion on the issue of expectation. Because of the evidence adduced relevant to detriment, I will make findings on this aspect of the matter.

[65] Mr Maxted gave evidence of many works undertaken by the plaintiff in relation to the house and the property which were largely undisputed by the defendant. The defendant argues that to the extent that the plaintiffs did the works, they were not done in reliance on any expectation of being given an interest in the property arising from representations made by Mr Smith, but were done for other reasons, or were done before any such expectation arose.

[66] Mr Campbell prepared a summary of the defendant's income and outgoings in respect of the property for the 1991 to 2005 tax years (exhibit 24) from information provided by the defendant. For the years between 1991 and 2002, amounts were recorded for repairs and maintenance and the summary prepared by Mr Campbell shows an analysis of those expenditures for some of these years. There are separate expenditures for slashing and clearing in 2001 ($7,755), 2002 ($1,293) and 2004 ($632). There are significant variances in the amounts spent in each year on repairs and maintenance. In the 1993 year which covered the period of initial occupation of the property by the plaintiffs, an amount of $21,538 was spent on repairs and maintenance. In subsequent years the larger expenditures were $6,514 (1994), $3,953 (1995), $6,078 (1997) and $8,671 (2000). The total of the amounts spent on repairs and maintenance and slashing and clearing between 1993 and 2002 was $58,625.

[67] Apart from spending about $180 on a chainsaw, the plaintiffs did not quantify any of the expenditures undertaken by them in respect of the house or the property.

[68] There was no dispute between the parties that the clean up of the property after the plaintiffs took up residence was at the expense of the defendant. This is consistent with the analysis of the defendant's expenditure on repairs and maintenance in 1993, eg an amount of $4,940 was spent on spraying weeds. Although Mr Maxted described the assistance that he gave to persons engaged by Mr Smith to undertake tasks on the property (such as removing the old machinery, pipes and engines that had been left on the property from when it had been a farm), Mr Maxted did these things because he wanted to do them and before the critical time. The same observation applies to the first lot of work that the plaintiffs did on the driveway of the property which was to smooth the river sand that the defendant purchased for the driveway. Mr Maxted also did work in establishing gardens. He said that Mr Smith paid for some of the gardens, but that he then acted on his own initiative "to make it a lot more the way we would live" (at Transcript p 47). If this work was done after the critical time, it was done because Mr Maxted wanted to do it.

[69] Mr Maxted gave evidence of organising a quote from a painter to paint inside the house at Mr Smith's request. The plaintiffs do not contend that they paid for the painting, but that they assisted in moving furniture, taking down curtains and the like to assist the painters in their task. That cannot be characterised as detriment when the plaintiffs willingly provided that assistance and it contributed to their enjoyment of the property.

[70] There were a number of purchases, such as for ceiling fans and new curtains, that entailed small amounts of expenditure by the plaintiffs, but the plaintiffs were happy to undertake these expenditures as part of their pride in the presentation of the house they were renting or for their own enjoyment of the house. This also applies to the making of the curtains by Mrs Maxted. The plaintiffs' purchase of two airconditioning units was for their comfort.

[71] Mr Maxted gave evidence that he paid for coverings (in the nature of awnings) installed over the front and back doors and for the installation of a roller door on the garage. The photograph (exhibit 10) shows the awning over the front door and the open roller door. Mr Maxted did not identify the timing of this expenditure. Mr Maxted did suggest, however, that when he raised the need for the work to have the awnings installed, Mr Smith was not interested in doing that work, so the plaintiffs went ahead and organised the work themselves (at Transcript p 70).

[72] The second lot of work on the driveway done by Mr Maxted was putting in cement edges and river stones. It is likely that was done after the critical time. He described making it "more of a pleasing looking driveway in shape form" (at Transcript p 48). Mr Maxted undertook this work because he wanted to and was proud of the result.

[73] Mrs Maxted agreed (at Transcript p 154) that the works that the plaintiffs did around the house were done to present the house well, and not because they were told to do those works.

[74] To the extent that the plaintiffs allege in paragraph 54 of the statement of claim that from 2002 until late 2004 they looked after the property with little input or direction from the defendant, the plaintiffs were conducting themselves as the tenants of the property consistent with the rights conferred on them under the tenancy agreement, irrespective of any expectation that the plaintiffs might have had about gaining an interest in the property.

[75] The plaintiffs have therefore failed to prove that the acts claimed to amount to detriment were undertaken in reliance on any expectation that they would be granted an interest in the property (apart from their long term tenancy). Even if there were the requisite link between the detrimental acts and any such expectation, the acts were not substantial and were insufficient to support a claim in equitable estoppel: Compare Flin v Flin [1999] VSCA 109; [1999] 3 VR 712, 744-749 [96]-[117]; Sullivan v Sullivan [2006] NSWCA 312 at [90]- [93]; and Donis v Donis [2007] VSCA 89 at [34].

[76] I have therefore reached the conclusion that the representations that Mr Smith made to the plaintiffs at the critical time were acted on by the defendant in entering into the tenancy agreement with the plaintiffs. Any expectation that the plaintiffs may have had about obtaining a greater interest in the property was not due to the representations of Mr Smith which had been carried into effect by the tenancy agreement, but as a result of the plaintiffs' hope that they would gain such a benefit. There was nothing in the conduct of the defendant before Mrs Werda's death that makes it unconscionable for the plaintiffs' interest in the property to be limited to the tenancy agreement.

Extent and nature of works undertaken in November 2004

[77] There were no photographs of the boundary between the property and the Olssons' property taken prior to the clearing that was undertaken in November 2004 or after the works stopped. There was also no survey evidence as to the location of that boundary fence prior to its removal. If the boundary fence was wholly located on the Olssons' property, then it did not belong to the defendant.

[78] The works that the defendant alleges were undertaken were the removal of portions of fencing from the property and removal of "large tracts of mature established trees from the property". In paragraph 6 of the amended answer, the plaintiffs alleged that any removal of the fence line was necessary because of its dilapidated state and that no vegetation which could be described as "mature" or "established" was removed by the plaintiffs. The amended reply and answer was filed by leave at the trial. Prior to the trial, the allegation of breach of the tenancy agreement was defended by the plaintiffs on the basis that the fence was removed with the permission of Mr Smith and that all clearing was done at the request and direction of Mr Smith. That defence was not pursued by the plaintiffs at the trial.

[79] I will make a finding on the timing of the works, as the issue was canvassed in evidence. The quote from Barry Winn Earthmoving Pty Ltd dated 10 November 2004 (exhibit 17) suggests that the works had not been undertaken on 10 November 2004. The timing of Mr Maxted's conversation with Mr Campbell on 11 November 2004 suggests that the receipt of the quote from Barry Winn Earthmoving Pty Ltd prompted that contact. Although Mr Maxted denied that he approached Mr Campbell to inform him about the proposed works and seek payment from the defendant for them (at Transcript p 106), I found Mr Maxted's evidence on this aspect confusing. It may be that what Mr Maxted was denying was the suggestion that he was looking to the defendant for payment of the works. The timing between the giving of the estimate from Barry Winn Earthmoving Pty Ltd and Mr Maxted's conversation with Mr Campbell, however, was such that there must have been a connection between them. I find that the works to clear the boundary were undertaken soon after 11 November 2004 without the approval of the defendant and the clearing had been substantially completed by the time the plaintiffs received Mr Smith's letter dated 15 November 2004 (exhibit 19).

[80] I find that the fence comprising star pickets, wooden posts and wire that provided the boundary between the property and the Olssons' property was in a dilapidated state, as described in Mr King's report (exhibit 12) and of little value. I find that the remnants of that fence were removed by Barry Winn Earthmoving Pty Ltd and that an area of about four metres in width running the length of the boundary on side of the property was cleared (with some trees that were identified by the Council remaining) to form a fire break, as described by Mr Olsson. I find that the clearing of vegetation was undertaken for establishing a necessary fire management line, and was undertaken in cooperation with the fire brigade and the Council. On the basis of Mr Olsson's evidence, the defendant cannot prove that any trees that could be characterised as timber, in the sense in which that expression is understood in determining rights between landlord and tenant, were cut down: Re Hart [1954] SASR 1, 5-6; 16 Halsbury's Laws of Australia at [245-1265]; Hill & Redman's Law of Landlord and Tenant (LexisNexis Butterworths, London, 2006) at [1585].

[81] It is common ground between the parties that the tenancy agreement contains the following conditions:

(a) must keep the premises and inclusions reasonably clean, having regard to their condition at the start of the residential tenancy and

(b) must not intentionally or negligently damage the premises or inclusions.

13.1 The tenant may attach a fixture or make any renovation, alteration, or addition to the premises only if the lessor consents in writing."

[82] One breach pleaded by the defendants was not pursued at the trial. This was the allegation that the plaintiffs kept horses on the property without the consent of the defendant.

[83] The issue that has to be determined is whether the removal of the vegetation and trees (which are not in the nature of timber) to make a fire break amounts to damaging the premises. They are not fixtures, so that only clause 12.1 is relevant to this issue.

[84] The property is of an unusual size and nature to be the subject of the RTA. There was no issue at the trial that the property was used mainly as place of residence and therefore was residential premises for the purposes of the RTA. There is no provision in the RTA that affects the resolution of whether the removal of the vegetation and the trees in making a fire break breached the tenancy agreement.

[85] There are old English authorities that establish that the property in trees (in the nature of timber) is in the landlord, but the property in bushes is in the tenant: for example, Berriman v Peacock [1832] EngR 851; (1832) 9 Bing 384, 386-387; [1832] EngR 851; 131 ER 660, 661.

[86] On the basis of the findings that I have made about the purpose of the clearing of the vegetation and that the defendant has failed to prove that any trees (in the nature of timber) were cut down, I am not satisfied that the defendant has proved that by such conduct the plaintiffs have damaged the premises. They have undertaken extensive management of the vegetation including trees (which have not been shown to be timber), but it has not been shown that the clearing exceeded what was required to maintain the property in a safe condition, particularly when the clearing was undertaken with advice from the fire brigade and the Council.

[87] The next issue is whether the destruction of the fence amounts to damaging the premises. Although the fence was of little value, it did provide some indication of where the boundary was between the property and the Olssons' property. If it had been constructed on the actual boundary or slightly on the side of the property, it was an improvement to the property that could be the subject of the obligation imposed on the plaintiffs under clauses 12.1 and 13.1 of the tenancy agreement. Despite its dilapidated state, the plaintiffs did not have the authority to approve the removal of the fence, if it was in any way located on the property, without the consent of the defendant. Even if it is argued that the removal of the fence was necessary to facilitate the clearing for the fire break, it still required the consent of the defendant.

[88] There is a technical problem with the defendant's claim for breach of the tenancy agreement based on removal of the fencing from the property. It is an implicit assertion in paragraph 3(a) of the counterclaim that the defendant owned the fencing that was removed by the plaintiffs. Although the plaintiffs in their amended answer deny the allegations in paragraph 3 of the counterclaim, they did not plead to the implicit assertion that the defendant owned the fencing that was removed by the plaintiffs. It was assumed at the trial that the fencing was on the boundary and, as such, was part of the property. The state of the pleadings is such that the plaintiffs cannot dispute that assumption, but the defendant must prove that the fence (or part of it) that was removed was part of the property.

[89] Proceeding on the same assumption that applied to the trial, despite its dilapidated state, the removal of the fence that was authorised by the plaintiffs without the consent of the defendant breached either clauses 12.1 or 13.1 of the tenancy agreement.

[90] The defendant sought to have the plaintiffs rectify the removal of the fence by replacing the fence. On 4 March 2007 Mr King provided a quote to the defendant to erect 465 metres of rural fencing at $12 per metre which was for the sum of $6,138 (inclusive of GST). Although the plaintiffs were prepared at the time the fence was removed to meet the cost with the Olssons of erecting a new fence, they denied they were in breach of the tenancy agreement and have not reinstated the fence.

[91] The defendant seeks declarations to the effect that the plaintiffs' breach of the tenancy agreement is a substantial breach pursuant to the RTA, that the plaintiffs have breached a fundamental term of the tenancy agreement and that the defendant is entitled to terminate the tenancy. The defendant also seeks damages or compensation in respect of the loss and damage sustained by the defendant.

[92] The plaintiffs did not expressly claim relief against forfeiture of the tenancy agreement. They did seek an injunction restraining the defendant from harassing the plaintiffs as a result of the notices given by the defendant under the RTA. This relief, arguably, could be broad enough to encompass a grant of relief against forfeiture. I raised this omission to seek relief against forfeiture during the trial. No application was made by the plaintiffs during the trial to amend their claim for relief. After the decision was reserved, counsel for the plaintiff foreshadowed adding to the prayer for relief a claim for relief against forfeiture, in the event that it were found that the defendant is entitled to terminate the lease by reason of the matters set out in its counterclaim. That application has not been pursued while the decision has been reserved.

[93] By virtue of s 17(1) of the RTA, the Property Law Act 1974 does not apply to residential tenancy agreements. The plaintiffs therefore cannot rely on s 124 of the PLA. Section 18 of the RTA does, however, expressly provide that the RTA does not operate to reduce the effect of a right or remedy a person would have had apart from the RTA. Prior to the enactment of the PLA, an equitable right of relief against forfeiture, as a result of the breach of covenants in a lease, was recognised: Pioneer Gravels (Qld) Pty Ltd v T&T Mining Corporation Pty Ltd [1975] Qd R 151, 160. Apart from the consideration of whether there is an equitable right of relief against forfeiture of the plaintiffs' tenancy agreement in the circumstances of this case, there is also the consideration whether, if the matter were before the Tribunal, the Tribunal exercising jurisdiction under the RTA to make a termination order because of a failure by the plaintiffs to leave for unremedied breach, would make an order in the circumstances of this matter. There is a list of non-exclusive factors which may be considered by the Tribunal under s 204(3) of the RTA. One of those factors is the seriousness of the breach. The beneficial terms of the tenancy agreement, the state of the fence and the reason for its removal and the breakdown of the familial relationship would be relevant to the determination of the Tribunal as to whether in all the circumstances, the breach of the plaintiffs was serious enough to justify the termination of the long term tenancy agreement.

[94] In a different context, there is also authority to support an argument that relief against forfeiture can be granted to a tenant where a landlord has brought proceedings for forfeiture, even if the tenant has not specifically sought relief against forfeiture: Lam Kee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247, 257.

[95] In the light of the findings that I have made about the nature of the breach of the tenancy agreement by the plaintiffs, it is necessary to consider these issues relating to relief against forfeiture.

[96] Although the fence that was removed was of little value, the damages for breaching the tenancy agreement must be the cost of reinstating the fence. The quote of Mr King (exhibit 28) is for the same type of rural fencing that was proposed by the plaintiffs and Mr and Mrs Olsson. As the defendant is entitled to seek a contribution from Mr and Mrs Olsson for the cost of this fence, the defendant's damages should be calculated as half the cost of the fence which is the sum of $3,069.

[97] The issue that is raised in these reasons for judgment about proof that the fence that was removed was on the property was not canvassed at the trial. The issues of whether a claim for relief against forfeiture can be pursued on the current pleadings or whether the plaintiffs should apply for leave to amend their pleadings to make such a claim and whether the plaintiffs can succeed with a claim for relief against forfeiture also need to be canvassed in the light of these reasons for judgment.

[98] I therefore will make orders after the parties have had an opportunity to make further submissions in the light of these reasons for judgment. It will also be necessary to hear the parties on the question of costs.