Scheps v Cobb; Estate of Dagobert Scheps deceased

Supreme Court of NSW|2005-03-23|Before: Burchett AJ

Scheps v Cobb; Estate of Dagobert Scheps deceased [2005] NSWSC 455 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION : Order to be made in favour of plaintiff pursuant to short minutes upon a date to be fixed.

CATCHWORDS : PROPERTY (RELATIONSHIPS ACT) - whether an adult son, instead of claiming under the Family Provision Act against his father's estate, could allege he cared for his father within a "domestic relationship" as defined in the Property (Relationships) Act - unavailability of such a claim unless commenced in father's lifetime - construction of Property (Relationships) Act - CONTRACT - allegation of contractual right of son against deceased estate arising under agreement to care for father in old age - principle requiring very careful scrutiny of claim against deceased - whether legally binding contract intended between father and son - circumstances where binding promise was found - whether alternative restitutionary claim lay if contract was unenforceable

Conveyancing Act 1919, Pt 4 Div 6 Family Provision Act 1982 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1944, s2 Property (Relationships) Act 1984, s5, s20, s25, s44, s47, s52, Div 2, Pt 3 Restitution Law in Australia (1995) K Mason and J W Carter

Balfour v Balfour [1919] 2 KB 571 Beverley v Watson (1994) BC 9401884 at 12-14 Day v Couch [2000] NSWSC 230 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 CASES CITED : Hunt v Barlow [2000] NSWSC 324 Plunkett v Bull (1915) 19 CLR 544 Reid v George (1996) 20 Fam LR 374 Skene v Dale [1990] VR 605

Leo Henry Scheps (Plaintiff) PARTIES : Mathilde Johanna Cobb (Defendant)

In person (Plaintiff) COUNSEL : Mr L Ellison (Defendant)

In person (Plaintiff) SOLICITORS : Harris Wheeler (Defendant)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6046/03 LEO HENRY SCHEPS V MATHILDE JOHANNA COBB (AS EXECUTRIX OF THE ESTATE OF DAGOBERT SCHEPS, DECEASED) JUDGMENT

1 This case is one of the sad consequences of the decline and illness that led, over a period of a number of years, ultimately to the death at the age of 87 years of Dagobert Scheps. He was a widower, with three adult children of whom the eldest, the defendant Mathilde Johanna Cobb, was, throughout his illness, living with her husband in another city, and the next in age, a son Eric, was and for long had been living with his wife in Germany, while the youngest, the plaintiff Leo Henry Scheps, had returned following the death of his mother from Papua New Guinea, where he had worked for about eight years as a teacher, being imbued with a strong interest in and commitment to the Pacific islands region, to support and assist his ageing father. The plaintiff claims that, at some stage when the onset of dementia had become a threat but had not yet robbed the old man of his competence, he promised that if his son continued to provide necessary care for him during his lifetime he would grant to him a life interest in the property comprising his home at Caringbah, or otherwise compensate him equitably out of his estate. The defendant, supported by her brother Eric who gave evidence, denies knowledge of any such agreement.

2 By the will of the deceased, made much earlier, on 4 September 1989, his daughter the defendant and his younger son the plaintiff were named executors and trustees, and the whole estate was devised and bequeathed to the three children in equal shares as tenants in common. The deceased died on 17 April 2002 and probate was granted to the defendant on 24 November 2003, the plaintiff not having applied for probate by reason of the dispute between the siblings. Property (Relationships) Act Claim 3 The case involves a discrete question of law which it is convenient to dispose of before any full examination of the facts. This question of law arises because the plaintiff, who chose to represent himself, failed to make any claim under the Family Provision Act 1982, as would be normal in a case of this kind, but made a claim, in addition to claims in contract and for a quantum meruit, on the basis that the Property (Relationships) Act 1984 had some application. So the first matter to be determined is whether any claim could lie pursuant to s20, which is contained in Division 2 of Part 3 of the latter Act. 4 Section 20 confers on the court a power to adjust interests with respect to the property of a party to a domestic relationship as defined in the Property (Relationships) Act. A domestic relationship is defined in s5 to include, in addition to a de facto relationship, "a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". There is, by s5(2), an exclusion in the case where the provision of domestic support and personal care is "for fee or reward". 5 The difficulty affecting the plaintiff's reliance on the Property (Relationships) Act arises from the nature of the statutory scheme, which appears to contemplate an application made under s20 between living parties to the alleged domestic relationship. Here, of course, no claim was made during the lifetime of the deceased who was one party to the domestic relationship on which the plaintiff relies. Section 24 of the Act provides, by sub-section (1): "Where, before an application under section 20 is determined, either party to the application dies, the application may be continued by or against, as the case may require, the legal personal representative of the deceased party."

It will be noticed that this provision contemplates the making of an application followed by the death of a party; otherwise the word "continued" would be quite inappropriate. Having provided for that one situation, the legislature turned to the question of the effect of the death of a party "after an order is made" against that party, and provided, by s25, for the enforcement of the order against the estate of the deceased party. Neither of these particular cases fits the present situation and the maxim expressio unius est exclusio alterius has obvious application. The force of the maxim is greatly strengthened by the fact that the same Act, in Part 4, s52, does contain a clear provision for the bringing of proceedings against the estate of a deceased party, but s52 does not operate so as to make s20 available to the plaintiff. Section 52, in combination with s56(5), would enable a declaration to be made as to the existence of a domestic relationship, but these provisions are directed to the enforcement of a domestic relationship agreement as defined in the Act, and not to the question of the adjustment of property interests under s20. 6 In Skene v Dale [1990] VR 605, Kaye J held there was no serious question to be tried that the Victorian provisions equivalent to s20 and s24 could be relied upon in circumstances relevantly similar to those of the present case. He held that the statutory remedy conferred by the equivalent of s20 was a personal statutory right which abated on the death of either party. This decision was cited with approval by Young J (as he then was) in Reid v George (1996) 20 Fam LR 374, where, however, the plaintiff was able to proceed under s20 because the application had been made before the death of the other party, so that it could be "continued" pursuant to s24. His Honour drew attention (at 376) to the maxim to which I have referred, and noted that it had also been referred to by Kaye J, but he noted as well a provision of the Law Reform (Miscellaneous Provisions) Act 1944, s2, which is plainly relevant, and serves to reinforce the position under the Property (Relationships) Act. Section 2 provides for the survival of personal causes of action in certain cases, but expressly excepts "claims under Division 2 of Part 3 of the Property (Relationships) Act 1984". His Honour concluded (at 377); "Therefore I think it is clear that the only way for a s.20 order to be made after the death of a party is by means of s.24, that is, when an application under s.20 was made before the death." 7 In argument, counsel for the defendant asserted that this conclusion would make the Property (Relationships) Act entirely inapplicable because the only provision (other than s20) on which the plaintiff could rely would be s47, which requires an agreement in writing. But s47 does not require an agreement in writing - it provides for the consequences, in certain circumstances, of such an agreement existing, and (by sub-section 2) for a particular effect which a domestic relationship agreement that is not in writing may have. What can properly be said is that Part 4 of the Act does provide (by s44) that an agreement of the kind alleged by the plaintiff is a "domestic relationship agreement" within the statutory meaning, and (by s56) that this Court may make a declaration as to the existence of the relevant domestic relationship and (by s52) may enforce the domestic relationship agreement against the estate of a deceased party. But it is not a special right under s20 that is enforced; it is the agreement itself. Contract Claim 8 It is appropriate to turn now to the claim made by the plaintiff in contract. An understanding of this claim requires some recital of the facts. The deceased and his family migrated to Australia from the Netherlands in 1951 and came to live in Caringbah. The defendant had been born in 1943, Eric Scheps in 1945 and the plaintiff in 1947. The language spoken in the home appears to have remained Dutch. The deceased worked in the jewellery trade in connection with which his son Eric later returned to Europe, but the defendant and the plaintiff took a more academic course. The defendant qualified as a medical technologist and the plaintiff obtained a master's degree from Sydney University majoring in English literature, following which he made more than one attempt to complete doctoral studies and has worked in universities and educational institutions, including some years of high school teaching in Papua New Guinea. The defendant married a solicitor and also worked as a senior medical technologist in a Newcastle hospital. 9 It was in 1968 that Eric left Australia to return to Europe, and when the deceased was widowed on 8 August 1988 by the death of his wife the plaintiff was working in Papua New Guinea although he made a hurried visit to Australia to be at his mother's bedside. After her death, the deceased requested the plaintiff to come back to the home to assist him (he was then in his mid-seventies), the defendant having earlier left the home to be married. She has lived with her husband in Lambton near Newcastle since 1989. Both Eric and the defendant had school age children. Although the plaintiff had been teaching at senior high school level in Papua New Guinea since 1980, he resigned his employment in order to return to Australia and assist his father. 10 It was on 11 December 1988 that the plaintiff commenced living in the Caringbah house with his father. He helped with the bills, the household maintenance, gardening, cleaning of the pool, cooking and washing and the management of his father's affairs. Over the next few years, the father required a cataract operation and treatment for laryngeal cancer, in respect of each of which the plaintiff assisted in getting his father to treatment and by translating for his father. But the father's health remained generally satisfactory during the first few years, and the plaintiff was also able to do part time work as a teacher of English in the Department of Technical and Further Education and also to commence additional studies with a view to obtaining his doctorate. It is likely he would have obtained this further qualification and pursued an academic career at some level had he not chosen to devote himself to his father's care as care did become necessary. In May 1989 the plaintiff and his father purchased together (the plaintiff's share being two-thirds and the father's one-third) a property at Towrang near Goulburn. It was suggested at the hearing on behalf of the defendant that the plaintiff's somewhat over-enthusiastic hopes - "to build a house on it and live there" on his "own little slice of paradise" - were inconsistent with the devotion he professed to the care of his father. But what was unreal was the idealised picture of Towrang; there was nothing unreal, on the evidence, about the devoted care and attention which the plaintiff gave to his father. In any case, 1989 was very early days, a number of years before the conversation in which the plaintiff alleges that the promise he relies on was made, and well before Mr Scheps senior developed serious medical problems. 11 The conversation on which dispute centres is alleged to have taken place on or about 29 September 1994, the date when the plaintiff was granted a power of attorney by his father with the knowledge of the defendant and her husband, who, as I have said, was a solicitor, and without objection from them (the plaintiff says they endorsed this action, to which the defendant confined her response to the statement that she "did not 'endorse' the granting of a Power of Attorney to Leo"; however, it was in fact her husband who provided the form of Power of Attorney). The plaintiff's evidence is that, at that time, his father said to him in Dutch words to the effect: "I can see that you have been giving up a lot to look after me here at home. I want you to be able to stay living here after my death. I think that's fair [I understand the plaintiff says the word he so translated carries the sense of 'just' or 'equitable']. I will discuss it with Tilly [the defendant] and John [her husband]." 12 Although the language attributed to the father by the plaintiff (and there was no dispute about the translation) concludes with the statement "I will discuss it with Tilly and John", it does not suggest any uncertainty about the father's intention. He wanted the plaintiff to be able to continue to live in the house after his death and he stated his conclusion that this was fair. He did not even propose discussing the matter with his son Eric, but with his daughter and her husband who, as a solicitor whose firm had drawn his will might, had he thought it appropriate, have advised on some documentary implementation of the decision. Of course, any advice by John Cobb in relation to that matter would have required him to give attention to the question whether there was a conflict of interest since his wife was a beneficiary under the will. The defendant gave evidence denying her knowledge of any agreement, but no affidavit of her husband John Cobb was read. Nor was there any suggestion that, if the father did say what the plaintiff alleges, he ever communicated any retraction or change of mind to anyone. On and about 29 September 1994, and for at least a substantial period thereafter, I am satisfied Mr Scheps senior was competent to make the agreement alleged. The standard of competence required and the relevant principles of law are set out in the judgment of Owen J in Beverley v Watson [1995] ANZ Conv R 369 at 370-372. 13 It is the plaintiff's case that in the following year, on or about 14 October 1995, his brother Eric, then in Australia upon a visit, said to him: "Seeing you've been looking after Dad for all this time, of course you can continue living in his house after he dies, especially if you nurse him through his dementia."

Although Eric Scheps denies making this statement, it seems a very natural thing to have said in the circumstances. Their father's need of care was real, but on the whole of the evidence it is clear he had not yet reached the stage where institutional care was in question, except as a future possibility, and Eric Scheps was in no position to assist personally. The expression "of course" suggests this was not the first occasion the subject had been raised, but the only evidence of it having been raised before is the evidence of the conversation with the plaintiff's father in the previous year. In the context of the plaintiff's affidavit, it appears to be put forward on that basis. 14 Shortly after the conversation with his brother Eric, the plaintiff says that, on 1 November 1995, he had a conversation with his sister the defendant in which she said: "Eric told me that it was his wish that if you continue nursing Dad, you can continue living in the family home after he dies. I agree with him entirely. John will be able to work out the details at the appropriate time." 15 An inference could arise, subject to the effect of the whole of the evidence, that the statements by Eric and his sister indicate their father had followed up his intention of discussing the matter with the defendant and her husband, and also that what was contemplated was a firm agreement. It was not suggested in cross-examination or otherwise that the observations made by Eric and the defendant in October and November 1995 had any other genesis, the defendant's case being simply that these things were not said. 16 A curious feature of the conflict of evidence about these discussions is that the plaintiff asserted the defendant's daughter, Helena Newton, another member of the family who had studied law, "was aware of the agreement" of October and November 1995, which accepted the arrangement stated by Mr Scheps senior in September 1994. What seems odd about this is that Mrs Newton swore an affidavit in which she stated the: "… only arrangement of which I was aware was that my uncle, Leo Scheps, would be able to live in the house at 86 Taren Road, Caringbah, New South Wales, and care for my grandfather, Dagobert Scheps, until he died. Neither my mother, Tilly Cobb, nor my uncle, Eric Scheps, nor the plaintiff discussed anything else with me."

The curious thing about this response is the pointlessness of the arrangement of which Mrs Newton gives evidence. How could the plaintiff need the agreement of his sister and brother to his living with his father in his father's lifetime? In any case, as will appear, they actively opposed his doing so by a proceeding in the Guardianship Tribunal. I do not accept Mrs Newton's evidence, but that does not mean that I find any significance in the particular evidence of the plaintiff to which it is directed. 17 In cross-examination, it was put to the plaintiff that there was "no agreement between you and your siblings regarding the occupation of the house after your father's death", to which he replied: "The agreement was with my father." He made it clear that he considered the question, so far as his brother and sister were concerned, was whether they knew about it. Again, it was put to him: "I want to put it to you that there was no such agreement with your father, and you are free to say yes there was?"

He replied: "Yes, yes there was." 18 I should add, in order to avoid any misunderstanding, that, elsewhere in his cross-examination, the plaintiff expressly confirmed the paragraphs of his affidavit in which he asserted the conversations with his brother and sister of October and November 1995. His case, plainly enough, asserted an agreement with the deceased with which his siblings, being aware of it, concurred. In argument, counsel for the defendant pointed to evidence of the plaintiff concerning his brother Eric's visit to Australia in 1995 when reference was made to a proposed investment by the plaintiff in a property at Bundeena. The plaintiff said he was interested "as [he] was as yet unsure where [he] would live after [his] father's death". But that uncertainty at a particular time is not inconsistent with his actually having a right to live at Caringbah if he chose to assert it. 19 On 24 November 1995, the plaintiff and his father saw a geriatrician and consultant physician, Dr Gonski, who obtained a history of "memory and ability to be independent" having "deteriorated over the last 12 months". The doctor noted that Mr Scheps senior had "played competition chess but he was unable to do this at that time" (he was still playing competition chess in about 1994, but the evidence does not establish precisely when he stopped doing so) and had "generally slowed down both mentally and physically". He "scored 29 out of 40 on a mini mental test". The doctor found he "has signs of dementia which is most likely of the Alzheimer type". No doubt referring to this opinion of Dr Gonski, the defendant's chronology states that the deceased was "diagnosed with senile dementia" in late 1995. Nevertheless, "his CT brain scan was normal" at that time. Nearly three years later, on 27 July 1998, Dr Gonski again saw Mr Scheps, finding "his condition that I described in 1995 has just generally deteriorated with regard to memory, mobility and falls." The doctor thought his mental state was "significantly impaired compared to that time". The doctor noted that Mr Scheps was "getting community support but his son is his carer now". He was attending "Wandarrah Day Care for dementia sufferers". 20 As a result of the deteriorating condition of Mr Scheps senior, the plaintiff found it impossible to continue to bear his workload of teaching and study. In about 1999, it became clear that some kind of breach had developed between the plaintiff and his brother and sister. The defendant says that some time before that she had urged the plaintiff to put their father's name down for institutional care, for which she thought the waiting list would be about three years, but the plaintiff had repudiated her suggestion very abruptly. The plaintiff's brother Eric and his daughter visited Australia and stayed at Caringbah in the house between 11 September and 2 October 1999 when Mr Scheps senior did not recognize them. Presumably as a result of the disagreement between the plaintiff and his brother and sister, the plaintiff had a solicitor Richard Woolmer of Adelsteins write to each of them on 26 November 1999 in similar terms. The letter to the defendant included the statement (and a corresponding statement was in the other letter): "Five years ago you and your brother Eric agreed that if Leo stayed in the house and looked after your father, he could stay in it for the rest of his life after your father's death, and then the house would be left to you and your brother's children in due course after his death."

After further statements indicating that the plaintiff had acted on the belief that "he had an agreement with [his siblings] which would allow him to rely on being able to have the house as his residence for the rest of his life", and that he had devoted himself accordingly, to his own financial detriment, to the care of his father, the letters continued: "During the time when he still had periods of lucidity, and in the course of such periods, your father said to Leo that he (Leo) should look after him and in return should have the use of the house after his (your father's) death. He believed he had an agreement with you to allow him to stay in the house and acted in good faith on that belief in a way which was to his financial detriment, but now that belief is being denied."

The letters concluded with a proposal for a deed of settlement to give effect to the plaintiff's understanding. 21 In response, Mr Eric Scheps wrote on 2 December 1999 from Laudenbach, Germany, the following: "Thank you for your letter dated 26.11.99. Would you please inform your client (my brother Leo) that, as long as my father is alive (whose end I don't wish upon him any time soon), for, among other reasons, out of respect and dignity, the present time to enter into any correspondence, negotiations etc. concerning the subject of inheritance etc. is wholly inappropriate."

There was a note at the foot of the letter "copy to Tilly Cobb". The defendant responded rather more briefly, as follows: "My response to your rather strange and insensitive letter dated 26/11/99. I would like you to inform your client (my brother) Leo Scheps that I have no interest discussing my Father's property while he is still alive. This is the only respect my father has left in his life." 22 What seems to me to be particularly significant about each of these letters in reply to the claim made on behalf of the plaintiff is that neither contains, as would be natural, if no agreement or arrangement of the kind alleged had been made, a simple denial of the allegation. Instead, each letter asserted that it was unseemly to discuss the matter! 23 But although in December 1999 these replies were sent, in July 2000 Mr Eric Scheps signed in Germany an application to the Guardianship Tribunal of New South Wales (arrangements for which, including obtaining the appropriate form, must have taken some time), in the prosecution of which the defendant subsequently joined. This application alleged that in September 1999 the placing of Mr Scheps senior in "responsible and professional care" had been recommended to the plaintiff and referred, in reference to the property of Mr Scheps senior, to the power of attorney granted to the plaintiff and to "whatever may be left since my brother Leo, the carer, has power of attorney". The Tribunal noted in its reasons for decision of 23 March 2001 that "there was a general assertion by the applicant that his father was not being cared for sufficiently well by his brother Leo Scheps." There was also - "a general assertion that his brother may not have been acting in their father's best interests. Evidence was given that Leo Scheps had spent money on renovations and furniture. He in turn said the money used had been minimal and it was for the benefit of their father to have an improved environment as well as for himself. The amount spent was less than $10,000. The Tribunal required some primary evidence about dissipation of assets such as transfer of property or emptying of bank accounts but the applicant was unable to produce any."

On the other hand, the plaintiff was able to produce "professional evidence from treating doctors, Home Care and other community supports [which] all indicated that at this stage there were no concerns about the care being afforded by Leo Scheps." In the upshot, the Tribunal dismissed the application of Mr Eric Scheps supported by the defendant. 24 What seems to me to be important about the application to the Guardianship Tribunal is the light it throws upon the defendant's and Mr Eric Scheps' responses to the claim put forward by the plaintiff. Having asserted it was unseemly to discuss the agreement he said had been made with his father and its confirmation by them, within a few months they were disputing both the plaintiff's actions under the power of attorney and his care of his father. But they did so without adducing any significant evidence. For a period of years, the plaintiff had been allowed to care for his father, but now an attempt was made to prevent his continuing to do so. Of course, one consequence would have been, had the application been successful, to prevent the plaintiff from continuing to perform for his part the agreement to care for his father which he alleged had been made with his father to the knowledge and with the concurrence of his siblings. 25 The application having failed, the plaintiff did continue to care for his father until the father's death on 17 April 2002 at the age of 87 years. He put before the court, as he had put before the Guardianship Tribunal, ample evidence, which counsel for the defendant did not ultimately dispute, that his care of his father was unremitting and effective. I am satisfied it was of a high standard. 26 Since the death of the deceased, the plaintiff has gone on living in the house and the defendant has given him, on 24 December 2003, notice to vacate no later than 1 February 2004 and, upon his failing to do so, has instituted a proceeding, which awaits determination of the present matter, for his eviction and for an order under Part 4 Division 6 of the Conveyancing Act 1919 to enforce the sale of the land at Towrang, in which the deceased had a one-third interest. 27 The court was referred to the principle enjoining the most careful scrutiny of the evidence in a case where a claim is made that a deceased person incurred an obligation in his lifetime. The principle was explained by Isaacs J in Plunkett v Bull (1915) 19 CLR 544 at 548-549, where he said: "[U]ndoubtedly it is established that in cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue."

See also Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789; Hunt v Barlow [2000] NSWSC 324; Nagle v Lavender [2002] NSWSC 611; and Day v Couch [2000] NSWSC 230. Counsel for the defendant also relied on the presumption of fact which arises in some cases involving arrangements between members of a family that those arrangements were not intended to create legally enforceable obligations. Perhaps the best statement of the basis of this presumption of fact is still to be found in the judgment of Atkin LJ in Balfour v Balfour [1919] 2 KB 571 at 578-580. 28 But although this case does involve a claim of a contractual promise against a deceased estate, and therefore requires the very careful scrutiny to which Isaacs J referred, it does not do so in isolation from a context that was capable of being tested by the evidence of living persons and was in fact challenged. The plaintiff's claim that his father entered into an engagement with him is bound up with his claims that his brother and sister spoke to him about the matter and expressed their concurrence. They each deny that, but having given close attention to the plaintiff's evidence and to their evidence I accept his evidence and reject their denials. Scrutinizing with the requisite care the evidence put forward in respect of the promise the plaintiff alleges was made by his father, I also accept his evidence of that promise. 29 There remains the question whether, in the context of the circumstances, there was a promise that was intended to create legal relations. In considering this question I think it is of relevance that what was involved was property of some value and its use in circumstances extending into the future and after the father's death. The parties would have appreciated that the future is always uncertain and the interests of other persons, such as grandchildren in the event of the death of a child, might become involved in unpredictable ways. All these considerations would suggest the unwisdom of a purely familial arrangement with no binding effect, while, on the other hand, the father's reference to his son-in-law, a solicitor whose firm had drawn up his will, is in itself suggestive of some advertence to legal relations. These considerations have varying weight and are somewhat equivocal. Ultimately, the decision depends on the language used in the context of the circumstances, which certainly embraced serious issues. In my opinion the parties intended to conclude a legally binding agreement, and that is how the plaintiff's siblings understood the situation when they spoke to him about his entitlement subsequently. Their understanding, of course, as the plaintiff rightly recognized when under cross-examination, is not the point; but although I would reach the same conclusion in the absence of this factor, it seems to me it does throw some light by way of confirmation on the deceased's understanding of what he had agreed, which he probably communicated to his daughter and her husband and to his son Eric. 30 The language used by Mr Scheps senior is not very precise, but it is of course to be understood against the background of the circumstances that were certainly known to both parties, and in particular their respective situations as they then existed and were in prospect. The father needed and would increasingly need the son's assistance in the home and the son was already facing employment difficulties and would continue to face increasing difficulty with employment and, as a consequence, in putting himself in a position to provide for his own accommodation. In my opinion, Mr Scheps senior meant and was reasonably understood to mean that his son, in return for continuing to provide the care he had provided, would have a right to occupy for his lifetime the house and land at Caringbah free of any rent or occupation fee, and this right was offered and accepted in terms intended to be legally binding. Quantum Meruit 31 As I have already indicated, the plaintiff's case involved, as a further alternative, the claim in quantum meruit. This was put forward on the basis that if the father's promise was too uncertain to be enforced or was otherwise ineffective, the facts as alleged, and as I have found them, involved the performance of a very great deal of work, not gratuitously, but in reliance upon a mutual understanding that the performance of the work was to be rewarded pursuant to the promise. The claim is one of the kind which the law used to assign to the category of implied contract, but nowadays regards as falling within the principle of restitutionary claims. In K Mason and J W Carter on Restitution Law in Australia (1995) it is stated (at para 1034): "One situation, relatively straightforward, is the complete execution of the work contemplated by the parties. Where the work contemplated under the contract which does not materialise is fully executed the ineffective nature of the contract will not usually matter, at least from the plaintiff's perspective. There will be a claim for the work requested by the defendant, executed by the plaintiff and accepted by the defendant."

In such a case, the learned authors went on to express the opinion (in the same paragraph) that "it would in our view have been an unjust enrichment for the work to have gone unremunerated". In the circumstances of the present case, had I not concluded that there was an enforceable agreement I would have held that the plaintiff performed the work of caring for his father, to which he referred in his evidence, upon the basis of a mutual understanding that he would be remunerated and in circumstances that attracted the operation of the doctrine relied upon. Evidence which I found acceptable was adduced in the plaintiff's case to show the commercial rates at which this work would have been remunerated, and in my opinion the standard of care that was given by the plaintiff to his father was at least equal to the standard which could have been expected had the work been performed commercially. The plaintiff is an intelligent and able-bodied man, devoted to the task, who must have acquired over the years a great deal of knowledge of what was necessary and whose work was approved by the successive general medical practitioners having the care of his father over the last half dozen years of his life. 32 The defendant contended that a claim based on a quantum meruit would have to be confined to the limitation period of six years prior to the issue of proceedings on 1 December 2003, notwithstanding that, upon the understanding I have found proved, no claim for remuneration could arise and be denied by the estate until the death of the deceased and the grant of probate. Since I have held that the agreement was in fact enforceable, it is unnecessary to pursue this question or the precise quantification of an alternative claim which does not in the event arise. 33 I shall defer making formal orders pursuant to these reasons until the parties have had an opportunity to consider the form of the orders, and at this stage I shall simply stand the matter over to a date to be fixed for that purpose, when I shall also hear any submissions as to costs. I note that, at the hearing, as the plaintiff was appearing in person, counsel for the defendant accepted, very reasonably, that the task of preparing short minutes would fall upon him.

07/06/2005 - Incomplete judgment posted to internet - Paragraph(s) 12-33

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(1996) 20 Fam LR 374

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Cases Cited (5)