Shire Engineer's Conversation with Mr Roberts Senior.
38 In paras 43, 44 and 45 of the Second Amended Statement of Claim it is alleged that Mr Roberts Senior made an agreement, referred to as the relocation agreement, with Mr Jack Hunter, then the Shire Engineer employed by the Council, in or about October 1966. It is alleged (para 44) that Mr Hunter represented:
(i) That Council wished to relocate the road traversing lots 37, 38 and 71 from a position in the middle of each of those lots to a position along the northern boundary of each lot
(ii) that if [Mr Roberts Senior] agreed to the relocation of the road reserve traversing Lots 37, 38 and 71 that Council would close all other road reserves traversing the Lands.
39 It is alleged that Mr Roberts Senior relied on these representations. These facts are alleged to give rise to a contractual obligation of the Council to make application to the Minister for Lands to close the road. In an alternative it is alleged that Council is estopped from asserting that the road has not been closed but remains a public road.
40 Mr Roberts Senior's evidence shows that in or about early 1967 he received a telephone call from Mr Jack Hunter who asked to see him, and by arrangement they met at the northern boundary of Lot 38, on or near the road works which Council had recently carried out. Mr Hunter explained that Council was looking at improving access to a new house on Lara from Collie Road, and explained that the present road reserve became impassable when the creek flooded. He said "What we would like to do is to relocate the road onto higher ground along the northern boundaries of Portions 2, 37 and 38. If the road reserve can go there, it will greatly improve the quality of his access. The old road will be closed."
41 Mr Roberts Senior's evidence is that he told Mr Hunter that if the road reserve was placed along the northern boundary he would be giving Council for more and better land than he would be receiving (meaning more and better than the existing reserved road through Lots 37, 38 and 71). He said "Up here is some of our best farming land on this part of the property." Mr Hunter asked what he wanted and Mr Roberts Senior said "I will agree for you to relocate the road provided that Council close the other roads on Six Foot." Mr Hunter said "Yes that can be done" and Mr Roberts Senior said "Okay. I will leave it to you close the other road reserves". Mr Hunter said "Okay".
42 Mr Roberts Senior says on affidavit:
25. At all times since my discussions with Mr Jack Hunter it has been my understanding that the roads through Lots 34 and 40 had been closed. Had Mr Jack Hunter not agreed to close that road I would not have agreed to the relocation of the reserved road through Lots 37, 38 and 71.
43 Mr Roberts Senior restated the date of the conversation as late in 1966. Mr Roberts Senior fully acknowledged his inability to state in a reliable way the date, exactly or approximately, of the conversation which he claimed to have had. He said under cross-examination to the effect that the conversation would be in or about early 1967, somewhere around then or late 1966 (t 93). Mr Hunter's employment history makes it, with fair certainty, impossible that that conversation took place later than October 1966. Well before October 1966 an arrangement had been made or an understanding had been reached, whether contractual or not, among Union Fidelity, the Council and the Department of Lands that Union Fidelity would receive and accept the grant of the existing road rather than be paid compensation on resumption.
44 These circumstances make it extremely improbable that Council or Mr Hunter on its behalf entered into an agreement, arrangement or understanding in any terms which could be understood as a commitment to Mr Roberts Senior while Mr Hunter was still working as its engineer. Council had already spent years making arrangements with the persons whose agreement was significant. Council had already had an arrangement with Union Fidelity and had gone a long way towards carrying it out. It is very unlikely that Council then embarked on negotiating terms with or making a commitment to another person who was not then the owner of affected land. When title passed to the Roberts brothers Council needed to deal with them. Mr Roberts Senior did not own an interest in the land and it is improbable that he had more than an informal arrangement to acquire it from one of the three beneficiaries to whom Union Fidelity was in the process of transferring it. The circumstances of the arrangement show, in my opinion, that if it was made as Mr Roberts Senior claims it was not intended, and could not reasonably be understood by Mr Roberts Senior, to be a binding commitment.
45 A further improbability is that according to Mr Roberts Senior's evidence Mr Hunter explained to him, in a date late in 1966 which must have been in or about October, that Council would like to relocate the road on higher ground along the northern boundary because the existing road became impassable when the Creek flooded and said to him "If the road reserve can go there it would greatly improve the quality of his [Mr Fisher's] access." And Mr Roberts went on to say "If you place the road reserve along the northern boundary I will be giving Council far more and better land than I will be receiving." Yet Council's project for creating a new road had gone so far that the construction work had been completed more than a year before. To my mind it is very improbable that Mr Hunter would be seeking Mr Robert Senior's agreement for an arrangement to relocate the road to higher ground long after the construction works had actually taken place. In all practicality there was no turning aside, whatever Mr Roberts Senior said.
46 The conversation given in evidence by Mr Roberts Senior at para 29 of his affidavit of 17 July 2006 is curious in some respects. One is that the highest undertaking attributed to Mr Hunter, and highest indication of the action Council would take attributed to Mr Hunter is that the roads on Six Foot would be closed; it is not attributed to Mr Hunter that he undertook that they would not only be closed, but that title to them would be conferred on Mr Roberts Senior. Mr Roberts Senior used language in the conversation which showed his assumption that he would be receiving the existing reserved roads through Portions 37 and 38 but at the later point where he said that Mr Hunter gave a commitment, the commitment related to Mr Roberts Senior saying "I will agree for you to relocate the road providing that Council close the other roads on Six Foot." and Mr Hunter answering "Yes, that can be done." The conversation related to relocating the access road to Lara and closing "the other roads" which must refer to the road which provided access to Lara through Portions 37 and 38. There was no explicit reference to the road through Lot 40, which was not involved in the problem of access to Lara, and was on the other side of Millpulling Creek and in a different Parish. It was introduced and dealt with only at the end with the exchange I have set out.
47 In my view it is very improbable that Mr Hunter agreed out of hand to the closure of all other roads on Six Foot, and agreed forthwith when Mr Roberts Senior first mentioned other roads, and agreed in general terms although they were not involved in the subject earlier discussed. The general reference to "the other roads on Six Foot" went considerably beyond reference to the road lying between the two parts of Lot 40 and would include the part of that road which extended generally south west from there to the Collie Road and to the part which extended generally north bounded by Lot 34 on one side and part of Lot 40 on the other side, and could also include a road running south along the western boundary of Lot 40. At least some of these were the subject of a road permit, but the plaintiffs have never put the view that Mr Hunter made an agreement with respect to them.
48 The terms of the conversation which Mr Roberts Senior gives do not clearly show that it would have been understood by Mr Hunter that he was being asked for or that he was giving a commitment about closing not only the road reserve passing through Portions 2, 37 and 38, but also an existing dedicated road passing through Portions 40 of the next Parish about a mile away on the far side of Milpulling Creek. That would not be well described as a road reserve as it was a dedicated road.
49 If Mr Roberts Senior did form any beliefs about closure of any road reserve, it is remarkable, in my judgment unreasonable, that such a belief should persist for many years without any further information about official procedure to carry out the closure. The commitment allegedly made by Mr Jack Hunter was not made or recorded in writing, Mr Roberts Senior did nothing to enforce it, or even to let Council know that he thought it existed and that he was entitled to benefit of it, from 1967 until these proceedings were commenced in 2006. Union Fidelity was the registered proprietor of Lot 40 from the time of the Crown Grant in 1958 until the transfer was registered on 13 October 1966. At the time of the resumption the registered proprietors of Lots 37 and 38, who would be entitled to any claim for resumption compensation, were the three Roberts brothers. Mr Roberts Senior's inability to establish by evidence in a reliable way that date of the conversation creates difficulty for testing the probabilities about whether the conversation took place, or what its terms were. This difficulty does not work to the plaintiffs' advantage, as they have the onus of proof.
50 For reasons which I will state it is extremely unlikely that Mr Roberts Senior owned any interest of any kind in Six Foot in late October 1966, the latest time when his conversation with Mr Hunter could possibly have taken place. A person who does not have a legal or equitable interest in land is not in a position to have the benefit of an equitable estoppel with respect to an expectation that some ancillary interest or augmentation of a prospective title would be conferred on him; nor would he be in a position to assist a claim of estoppel by pointing to a disadvantage or a detriment such as the loss by resumption of strips of land which he had hopes of owning but did not own.
51 Mr Roberts Senior says in evidence that he agreed orally to purchase Six Foot in April 1966 in a conversation with Mr Robert Jones, a selling agent acting on behalf of Mr Murray Roberts. He says that he signed the contract for sale about 12 months or more prior to settlement on 20 November 1967. The date on which he signed the contract does not establish the date on which contracts were exchanged. The contract document cannot be found and a solicitor's record card from those times contains very sparse information and does not show the date of exchange of contracts. Significant events in the purchase included that it emerged that title to Portion 71, which at some early stage was to be included in the sale, was Homestead Lease not freehold and could not be transferred to Mr Roberts Senior. His young daughter acquired the Homestead Lease and transferred Portion 71 now Lot 2 to Mr Roberts Senior in 1971 after she obtained a Crown Grant. It cannot be accepted that Mr Roberts Senior acquired an interest in Lot 40 or any other part of Six Foot at the time when he signed the contract, or at the time (which has not been established) when it was exchanged. On no view was Mr Murray Angus Roberts in a position to confer an equitable interest in Lot 40 under a Contract of Sale before he was the owner of the land himself. He became the registered proprietor in June 1967; perhaps he was the equitable owner before that, it may be when the Minister consented and the transfer to him became registrable. Any possible date is much later than any possible date for the conversation with Mr Hunter.
52 It is not possible that in or before October 1966 Mr Roberts Senior's contract of sale had reached the position where all conditions for completion had been fulfilled and he was entitled to treat the vendor as trustee for himself. Little is left of support for the view that a vendor is a trustee for the purchaser of land having regard to decisions of the High Court: see Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [45]-[53]; Black v Garnock (2007) 230 CLR 438 at [32] (Gummow and Hayne JJ). It is extremely unlikely that the purchase had reached the point where all conditions for completion had been fulfilled and Mr Roberts Senior had a claim to treat the vendor as trustee for himself. In particular, he had not paid for it.
53 It would not in my opinion be reasonable to rely on a representation made orally by Mr Hunter, the Shire Engineer, on the basis that he was giving a commitment by which the Shire Council was bound. Mr Hunter as the Shire Engineer did not have ostensible authority to give a commitment binding Council to close a road reserve; still less to close a dedicated public road. The most it would be reasonable to understand him to be doing, if he said what Mr Roberts Senior claims he said, was indicating the course he would himself support; it should be known to all reasonable people that councils make their own decisions and are not committed by the views of officers such as their Shire Engineers. (Further, it was as a matter of law necessary that there be a pre-existing express conferral of authority on him; this is a result of the provisions of Local Government Act 1919 s 530A(2) - (6) then in force.)
54 There is evidence about what Mr Roberts Senior understood that Mr Hunter was in a position to do. No reasonable person could think that public authorities bind themselves to dispose of roads and put an end to the rights that other people have to use the roads by unrecorded conversations in the field. Cross-examination clearly showed that Mr Roberts Senior in fact understood that it was Council and not Mr Hunter who made decisions about opening and closing roads and that consideration by Council would be required. Mr Roberts Senior referred to events where Mr Hunter made decisions about road construction and acted on them very quickly. Mr Roberts Senior said to the effect that Mr Hunter did make decisions about roads "off his own [bat]" - "Yes, he did to a certain extent to, I think, that things were a bit different into what they are now." (t 95, l 15-18). However later he was asked: "Q. And you knew very well that Council had to make the decision, it wasn't the Council officer or engineer who made that decision? A. On closing roads and opening yes, but this was one wasn't. He only shifted - we were shifting the road from down near the Creek where it was getting flooded or come up to the top of my boundary." (t 97, l 36-40). Mr Roberts Senior shuffled between several positions, but his answers make it clear to me that he understood that Council, not its officer, had to make the decisions on closing roads and opening them.
55 If Mr Roberts Senior did form any belief about closure of any road reserve, it is remarkable, in my judgment unreasonable, that such a belief should persist for many years without any further information about official processes to carry out the closure.
56 Mr Hunter could well have told Mr Roberts Senior, whom he had known for a long time, what was happening and was proposed to happen about the creation of the new road. It is improbable however that Mr Hunter told Mr Roberts Senior anything which was in any sense a commitment to future action by Council, and I find that he did not. The arrangement contemplated at the time of resumption was that the Crown would transfer to Union Fidelity or the beneficiaries of the estate the reserved road which ran through Portions 37 and 38, and that that would be accepted in discharge of rights to compensation on resumption of the new road. If Mr Hunter did tell Mr Roberts Senior what was happening he is likely to have told him this. There is no reason to think that the public road going through Lot 40 was in any way involved in the contemplated arrangement. The subject under consideration was the substitution of new access to Lara for the existing access to Lara.
57 In the Second Amended Statement Of Claim, claims 5 and 6 are claims based on a contention that the arrangement between Mr Roberts Senior and Mr Jack Hunter constitutes a binding and enforceable agreement between Mr Roberts Senior on behalf of himself and his son and the Council that in consideration of Mr Roberts Senior agreeing to relocate the road reserve on Lots 37 and 38 DP 572558 the Council would lodge with the Minister for Lands an application to close the road traversing lots 34 and 40 DP 752585; and an order for specific performance. For the reasons I have stated, I find that there was no such agreement.
58 Mr Roberts Senior was not in a position to prevent Council from taking someone else's land and bringing about dedication of a road along the northern boundary if Council decided to do so; it was equipped with public powers, and did not depend on his agreement. The land was owned by other people. Council had already surveyed, fenced and built the road to afford better access to Lara, and the process was completed in February 1967 by a proclamation which closed the reserved road through Lots 2, 37 and 38. The proclamation indicated that the road was closed with the view to a transaction in which it was to be disposed of in lieu of compensation for the land resumed. No such a transaction ever took place; so far as it appears on evidence no resumption compensation was claimed and no measure was taken to transfer title in the closed road to any of the successive proprietors of Lots 37 and 38. Mr Roberts Senior has incurred no detriment which might support so serious a remedy as compelling Council to close and transfer the road intersecting Lot 40, or to take steps to get another public authority to close it.
59 Reasonable people know that commitments relating to dealings with title to land or exchanges of land are required by law to be in writing if they are to be enforceable; this is even more clear in the case of dealing with a public authority than it is for dealing with a private person. If anything which could be regarded as a commitment was given to Mr Roberts Senior, it would not have been reasonable for him to act on an oral commitment.
60 Mr Roberts Senior ceased to be the owner of Lot 40 or of any land affected by the road in 1987; he transferred the land to Mr Roberts Junior without receiving payment. He cannot possibly be at risk of any claim by Mr Roberts Junior relating to any shortcoming in title to the land conveyed. He cannot be granted an equitable remedy in respect of the estoppel he alleges because he has no interest in the subject matter.
61 The detriment put forward in Mr Roberts Senior's first affidavit para 26 was "Had I made aware at any time between 1967 and March 1983" [and 1987 must have been intended] "that the road through Lots 34 and 40 have not been closed I would have undertaken steps to have the road closed in accordance with the conversation set out in para 21 above". The steps referred to can be no more than applying for Council to initiate closure of the road by the Department of Lands, and there could be no detriment in the absence of showing that that would have resulted in closure of the road; which has not been shown.
62 If there were such an agreement it would not be appropriate to enforce it by an order for specific performance because the decision by the Council to lodge an application with the Minister pursuant to section 34 (1) (b) of the Roads Act 1993, or to earlier legislation at earlier times, would be an exercise of public powers based on considerations much wider than the existence of a contractual commitment to exercise them, and the court should not preclude or control the exercise of those public powers for the purpose only of enforcing a contractual commitment.