Stenlake v Whipps

Lola Whipps, Mr Stenlake and the Coraki property renovations - 1987 to 2013

1. This section of the Court's reasons contains a detailed narrative of the Court's findings in relation to the claim. A further narrative of additional findings in relation the cross-claim appears later in these reasons. These narratives represent the Court's findings as to the events that occurred among these parties, recording salient uncontested facts and deciding relevant contested matters in relation to both the claim and the cross-claim. For reasons of economy these narratives do not always refer to inconsistent evidence that the Court considered and rejected before making its findings.

The Coraki property, the Deceased and Mr Stenlake - 1987 to 2006

1. The defendants are very attached to the Coraki property. I accept that Ms Glenda Whipps with some help from the deceased and Ian Whipps nursed their mother at the property during her final illness before her death.
2. The deceased was attached to the property as well. Mr Stenlake and the deceased visited the Coraki property regularly between 1997 and 2007.

Discussions about and work on the renovations - 2006 to 2007

1. Sometime probably in 2006, Mr Stenlake claims that he discussed renovating the Coraki property with the deceased. Mr Stenlake's account is that the renovation was the deceased's idea, but that he agreed that he would only spend money on the Coraki property if he could be sure that he could continue to enjoy the property if something happened to the deceased. The deceased then said, according to Mr Stenlake, that after her death she wanted Mr Stenlake to be able to stay at the property as long as he wished.
2. Although the Court must be cautious about accepting the evidence of witnesses who claim to have had uncorroborated conversations with deceased persons (Tam v Tang [2013] NSWSC 708, at [18] per Young AJ), I accept Mr Stenlake's evidence that he had all the conversations to which he deposes with the deceased. Mr Stenlake came across in Court as a man who understood the pursuit of self-interest. He would have been quite prepared to initiate a reasonably hard-nosed conversation like this with his de facto partner.
3. Following this conversation, Mr Stenlake says, and I accept, that he proceeded to make arrangements for the renovations to the main house. The renovations were substantial. Mr Stenlake claims that he ultimately expended in excess of $400,000 on the property: about $250,000 in renovations of the interior of the main house, about $100,000 on items of furniture for the main house, and about $65,000 on renovations to the exterior to the main house. The bulk of the renovations to the interior of the main house took place between April and December 2007. Other renovations occurred after this period.
4. Each side engaged experts to assess the financial effect of the renovations on the value of the Coraki property. The experts ultimately agreed on the financial effect of the renovations on the value of the Coraki property. The parties accepted that as at the time of the trial the renovations had increased the capital value of the Coraki property in 2015 from $500,000 to $600,000. In the choice between a claim for the quantum of expenditure and a claim for the increase in value, the plaintiff accepted that he was limited to a claim for the lesser sum. Thus if the plaintiff were found to be entitled to relief and a charge ordered in his favour then any charge to which he was entitled would secure the repayment to him of the sum of $100,000.
5. Mr Stenlake claimed that Ms Glenda Whipps, who at the time of the renovations held a half share of the property as a tenant-in-common in equal shares with the deceased, was aware of and consented to the performance of those renovations. He said that in early 2007 the deceased told Ms Glenda Whipps that Mr Stenlake and she had hired an architect in Brisbane to design the renovations. He said that Ms Whipps agreed that this was a good idea. Mr Stenlake says that before the works began he and the deceased showed Ms Glenda Whipps the plans for the renovations. He claims that Glenda Whipps said to him at this initial showing that the renovations looked fine after Lola explained to Glenda that she and Mr Stenlake wanted to live at or go to the Coraki property "for the rest of their lives". He adds that Ms Glenda Whipps regularly visited the Double Bay home and discussed the renovations in the course of the works.
6. I generally accept his evidence that this is what happened. What he says is inherently probable. He was about to spend a considerable amount of money on a house owned by his de facto spouse and her sister. Mr Stenlake struck the Court as a man astute about money matters, conscious of the extent of his assets and a person who had reasonable foresight of financial risk. It is difficult to conceive of him not checking with the owners of the property that his proposed investment of $250,000 into the Coraki property in renovations would be satisfactory to them both. The renovations involved substantial internal changes to the house. It was obvious that once they started that they would be noticed and if both Glenda and Lola Whipps were not happy with them there was bound to be trouble.
7. But Ms Glenda Whipps denied agreeing to the renovation of the main house. She said that the deceased and Mr Stenlake did discuss the renovations with her on a number of occasions and that she objected every time that it was raised with her. She said that she felt the renovations could desecrate the place where her and the deceased's mother died, and where she had strong memories of caring for her mother before then. She says that she queried why Lola and the plaintiff did not instead consider buying a different property rather than renovating and using this family property at Coraki. She denied ever seeing the plans for the renovation or having any involvement in the renovation. I do not accept this.
8. Ms Glenda Whipps was convincing when saying she did not want these renovations to occur. The central reason she gave for this stance was that she did not want anything changed from what the house was like when her mother died. I accept her evidence that she regarded the renovations as destroying the ambient feeling in the house reminding her of her mother. But despite that opposition, she seemed in my view to accept that the renovations would go ahead mainly because that is what the deceased and Mr Stenlake wanted and because they were prepared to spend the money. She even expressed some enthusiasm about them. I do not think that she voiced strong opposition to the renovations. In my view, what actually happened can be explained by other factors.
9. Mr Ireland QC on behalf of Mr Stenlake put strongly to Glenda Whipps that if she was against the renovations, she did not pursue the legal remedies available to her, such as obtaining an injunction, to prevent the renovations going ahead. He implied that her failure to take these steps indicated that she agreed with the renovation. Mr Ireland QC puts with some force against Ms Whipps that she was a person who was prepared to go and consult lawyers if she thought it necessary to look after her best interests. She saw a solicitor, Eleanor Murphy, immediately after the death of her sister about issues concerning her sister's estate. Therefore it is said that she could readily have sought an injunction if she was deeply opposed to the renovation.
10. Mr Ireland QC's submission oversimplifies Glenda Whipps' attitude a little but it does provide the key to what happened. She was vocally opposed to the renovations. But I accept that she did not go as far as obtaining an injunction, because for her it was a step too far to take legal proceedings against her own sister. Ms Glenda Whipps says that she did contemplate seeking an injunction to prevent the deceased and Mr Stenlake from undertaking the renovations but that in the interests of maintaining her relationship with her sister she decided against that course.
11. A better description of Ms Whipps' attitude to the progress of renovations was that she let them happen for the sake of family harmony. I accept Ms Glenda Whipps' statement of her reasons for not pursuing an injunction. She said, and I accept, this as a genuine expression of her opinions, that she thought that emotional things were more valuable to her than money. Preventing the destruction of the relationship with her sister was far more important to her than litigating to stop the renovations. If she was prepared to pull back from litigation, in my view, she was also prepared to waive the renovations through. Although I accept that she expressed some disquiet about how they would affect the house. Ms Glena Whipps found herself accommodating an aspect of Mr Stenlake's character. A strong impression the Court had of Mr Stenlake in the witness box was that he could be determined to get his own way.
12. In my view, Glenda Whipps was well aware that the renovations to the Coraki property were going to proceed, she saw the plans from which it was obvious that a substantial sum was going to be expended on the property and she was aware that Mr Stenlake would be funding the renovations. Although she was not directly a party to conversations between Lola Whipps and Mr Stenlake about his having a right of residence of the property, in my view, she had a general understanding of this from what was said to her, as Mr Stenlake deposes.
13. The defendants present contrasting accounts of the dealings about renovations. They contend that the deceased told Mr Stenlake, in the presence of Ian Whipps, that she was going leave her half share of the Coraki property to Glenda Whipps, as she wanted the property to stay in the Whipps family. They contend this is inconsistent with Mr Stenlake's case that he would acquire rights to live in the Coraki property by undertaking the renovations.
14. But I doubt that this is inconsistent with Mr Stenlake's case, as the defendants contend. The property was going to stay in the family. But Mr Stenlake had acquired some rights over it.
15. The defendants also claimed that Mr Stenlake had agreed to pay for the renovation of the main house in lieu of transferring the title of his Double Bay property into his and the deceased's joint names. According to Ms Whipps, her sister Lola had discussed with her on several occasions Lola's disappointment that all of Mr Stenlake's and her assets were in Mr Stenlake's name, including the Double Bay property.
16. In support of this version of events, the defendants point to the solicitor's file copy of an 11 February 2003 letter drafted by the deceased's solicitor and addressed to Mr Stenlake. This draft letter related to the legal paperwork that would be required to effect a change to the title of the Double Bay property as well as to the ownership of the pharmacy business to give Lola joint title to both. The solicitor's letter stated that the title matters were issues that the deceased and Mr Stenlake "had both discussed".
17. The deceased undoubtedly gave instructions to her solicitor in 2003 to draft this letter. Her decision to give those instructions indicates, in my view, that she was sufficiently interested in her name being registered on the title of the Double Bay property that she consulted a solicitor to give effect to that idea. On its own it does not indicate that the deceased discussed with Mr Stenlake the possibility of her being given that interest. He disputed he ever received this letter or that the deceased ever asked him to transfer the Double Bay property into her name.
18. I infer that some discussion took place between the deceased and Mr Stenlake about her name going on the title to the property. It is evident that the deceased asked the solicitor, Ms Eleanor Murphy to draft a letter recording that some such discussion had taken place between the deceased and Mr Stenlake. But it is probable, as Mr Ireland QC submitted, that the deceased was given the letter from Ms Murphy to give to Mr Stenlake but that she never gave it to him. I infer the deceased thought that to give him a letter would create too much tension between them and she did not go through with it.
19. But even if the deceased wanted her name on the Double Bay title, that would not, in my view, fully explain the extent of Mr Stenlake's expenditure on the main house.
20. The defendants' case that the real explanation for the renovation expenditure was compensation for not having her name on the Double Bay title does not displace the strength of Mr Stenlake's case for three main reasons. First, Mr Stenlake gives direct evidence of his arrangement with the deceased, a matter on which the Court found him to be generally credible, which evidence was generally internally consistent. Secondly, the only evidence of the arrangement for which the defendants contend comes indirectly through the deceased's account to Ms Glenda Whipps, which is not a very reliable basis for propounding an agreement such as the one Ms Glenda Whipps says accounts for the renovation expenditure. Thirdly, Mr Stenlake's and Ms Whipps' versions can stand together and indeed I think they do. It is quite conceivable that the deceased was unhappy with Mr Stenlake's refusal to put her name on the Double Bay title and complained to Ms Glenda Whipps about the reason for her unhappiness. But it is equally likely, if not more likely, that the same tough mindedness that refused her request to have her name on the title allowed Mr Stenlake to secure her agreement to his having the rights he claims over the Coraki property due to his expenditure.
21. There was another issue between the parties as to whether Mr Stenlake was present at conversations in which the deceased said that the Coraki property would go to Glenda after her death. None of these conversations are decisive on any relevant issue. Firstly the conversations in terms are not clearly inconsistent with Mr Stenlake's claim to spend time at or have an interest in the property. And secondly, those conversations seem to have taken place after the renovation expenditure.

Lola Phipps makes her Will - October 2008

1. At the time of making her final will on 1 October 2008, the deceased executed a testamentary statement explaining why Mr Stenlake was not provided for in her will: because he was already well provided for in terms of the properties and business that he owned. The testamentary statement stated in relation to the Coraki property that it had been in the deceased's family for generations and that the deceased wished to leave it to her sister, who was the other half owner of it.

Events after the Deceased's Death on 28 January 2013

1. The deceased died on 28 January 2013. Following her death, several events occurred that soured relationships among the parties to this proceeding. About two days after Lola's death, Ms Glenda Whipps says, and I accept, that Mr Stenlake told Ms Whipps that he wanted her to sign the Mercedes Benz vehicle over to him, and he gave her papers for her to sign to affect the transfer of the vehicle into Mr Stenlake's name. As the narrative of factual findings below about the Mercedes Benz shows, although Mr Stenlake was a reluctant giver of the vehicle to Lola Whipps, in my view, he did give it to her. But he seemed to have an obsession with getting it back. So driven was he about this objective that he showed gross insensitivity in making this request to Ms Glenda Whipps, even before her sister's funeral had been held. It is not surprising that what had not been a particularly good relationship between Glenda Whipps and Mr Stenlake before this, now deteriorated rapidly.
2. But this incident and the ones that follow also involving Mr Ian Whipps have important implications especially for assessing the evidence of Ms Glenda Whipps in the proceedings. The incidents seemed to be relationship-changing events especially for Ms Glenda Whipps. After them she was not prepared to look on the positive side of anything that Mr Stenlake did. To an extent therefore her evidence about him after this time must be viewed cautiously. In my view, her evidence about her discussions with her sister Lola and Mr Stenlake about the renovations suffers from a degree of understandable and inadvertent distortion against him on this account.
3. Mr Ian Whipps claims that shortly after the deceased's death, Mr Stenlake on two separate occasions demanded that he sign over all the assets from the deceased's estate to Mr Stenlake. Mr Whipps claims that on one such occasion Mr Stenlake said that if he did not get title to the Coraki property, the Mercedes Benz and everything else in the deceased's estate, Mr Stenlake would "bust" and "break" Glenda Whipps, so that Ms Whipps would "have nothing left". Ms Whipps claims similarly that on that occasion in March 2013 Mr Stenlake told the two defendants that he would destroy "the farm" and bankrupt them. I accept the evidence of Mr Ian Whipps and Ms Glenda Whipps about these statements by Mr Stenlake. Their evidence was inherently credible on this topic and it fits well with Mr Stenlake's demonstrated character about aspects of his property and financial affairs. He could show obstinate determination to get his own way about some things: evidenced by his long term refusal to agree that his de facto spouse Lola Whipps could have her name placed on the title of the Double Bay townhouse. He felt a sense of entitlement to an interest in the Coraki property because of his expenditure and he made that quite clear to Ms Glenda Whipps and Mr Ian Whipps.
4. But his attitude was partly justified, although the manner of its expression was not. As earlier indicated, I mostly accept that he did have the conversations with Lola Whipps and Glenda Whipps that he claims about the renovations. This is why he was angry and spoke in such unacceptable terms to his sister-in-law and brother-in-law on these occasions.
5. Sometime after the deceased's funeral on 14 February 2014, Ms Glenda Whipps received legal advice from her solicitor regarding the possibility of changing the locks on the main house. Ms Whipps gave evidence that she ultimately decided against this course on the basis that it might antagonise Mr Stenlake.
6. Mr Stenlake claimed that Mr Whipps had called him to ask for the return of the keys to the Coraki property for the purpose of taking an inventory, presumably in relation to his role as executor. I accept that this did happen. Mr Stenlake refused on the basis that a set of keys was available to both of the defendants. But at the very least Mr Stenlake was being unco-operative here. He seemed quite prepared just to be difficult about such things. It is puzzling as to why he took this attitude. Mr Stenlake conceded under cross-examination that the defendants never locked him out of the main house, nor threatened to do so.
7. In May 2013, Mr Ian Whipps and his wife visited the Coraki property only to find that the main house had been left almost empty. Mr Stenlake had by then arranged a removalist to shift many items from the property. Mr Stenlake originally claimed that he arranged only for the furniture in the property, which he had personally purchased to be removed and placed in storage.
8. But in cross-examination he admitted that he had also organised the removal of items within the house that he had not himself purchased. At the time of trial the main house was more-or-less empty, with its former contents stored by Mr Stenlake either at his home in Double Bay or in a nearby storage facility at Evans Head (" the storage unit").
9. During the trial, in an endeavour to try and resolve as many of the contentious issues between these parties as finally as possible including about alleged missing personal property, the Court made directions about the inspection and photographing of the items at the storage unit. The results of that inspection and consequent submissions led to the proceedings being relisted once again after the March hearing, on 9 June 2015. The result of those directions is discussed further below in relation to the cross-claim.

Grant of Probate and the Commencement of these Proceedings

1. Mr Ian Whipps applied for and was granted probate of the deceased's last will on 27 September 2013.
2. Mr Stenlake commenced these proceedings by Summons in February 2014 seeking an extension of his caveat over the Coraki property pursuant to Real Property Act 1900, s 74K and the declaration of an equitable charge. As earlier indicated, upon the plaintiff consenting to plead his claim, his caveat was allowed to expire in exchange for undertakings that the defendants not sell, mortgage or otherwise encumber the Coraki property before the conclusion of these proceedings.
3. The plaintiff filed his Statement of Claim in March 2014 and the defendants' Defence and Cross Claim were filed in May 2014. Mr Stenlake filed his Defence to Cross Claim in September 2014.

Analysis of the Plaintiff's Claim

1. The six necessary ingredients of a proprietary estoppel claim based on Dillwyn v Llewelyn (1862) 45 ER 1285; De GF & J 517 ("Dillwyn") and Ramsden are summarised by the authors of JD Heydon, MJ Leeming & PE Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, (5th ed 2014, LexisNexis, Butterworths) at [17-095] and may be shortly described: 1. an expectation or belief that A holds regarding the property of B, for example, that: 1. B's property belongs to A; or 2. B has given or will give an interest in that property to A; 1. knowledge on the part of B of A's expectation or belief; 2. activity by A in reliance on that expectation or belief; 3. that the satisfaction by B of A's expectation or interest would be lawful; 4. encouragement or knowledge by B of A's activity performed in reliance of A, where B fails to assert title to the property when A acts adversely thereto; and 5. knowledge on the part of B that B's own property rights are under B's enjoyment, control and disposition.
2. The party bound in equity in a proprietary estoppel claim can only fulfil the equitable obligation by a transfer of the interest but if that cannot effectively occur a charge or lien may be granted over the property in question: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10. Difficulty in quantifying the interest in question will not prevent the Court granting relief: Plimmer v Wellington Corporation (1884) 9 App Cas 699, at 713.
3. The plaintiff bears the onus of proof of each of the elements of the claim: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19. Equity will mould an appropriate remedy to each case: Milling v Hardie [2014] NSWCA 163. The plaintiff's equity is enforceable against a third party who takes the legal title with notice of circumstances that give rise to the plaintiff's equitable interest: Olsson v Dyson (1969) 120 CLR 365 at 378-9; [1969] HCA 3.
4. Mr Stenlake's case is that his renovation expenditure is accounted for by the elements of the proprietary estoppel he has pleaded, or in the alternative his contractual arrangement with the deceased.
5. I accept as Mr Stenlake claims that he held an expectation that the deceased would, upon her death, bequeath him a life interest in the use of the Coraki property or he would hold such an interest. I accept the deceased was well aware of that expectation and that Ms Glenda Phipps was aware of it too. Mr Stenlake arranged and financed the renovations of the Coraki property in reliance on that expectation. The expectation was one that the estate and Ms Glenda Whipps could lawfully satisfy. The deceased encouraged Mr Stenlake and Glenda Whipps acquiesced in Mr Stenlake carrying out the renovations. It would now be unconscionable for the estate and Ms Glenda Phipps to deny Mr Stenlake an equity in the property. Given present relationships between the parties, having him stay in the property for the rest of his life is not a satisfactory way of recognising his equity.
6. Mr Stenlake's proprietary estoppel case is made out against the estate and against Ms Glenda Whipps. The defendants' respective interests in the Coraki property will be charged in Mr Stenlake's favour in the amount of $100,000. The Court will declare that the plaintiff has an equitable charge over the Coraki property in the sum of $100,000; the figure that the experts agree represents the increase up to the date of the trial of the value of the property due to Mr Stenlake's renovations.
7. But the expenditure on the Coraki property mostly took place approximately 9 years ago. The parties did not put detailed submissions about whether, if he were successful, the plaintiff might be entitled to interest up to judgment on any part of this sum of $100,000 and if so for how long. The fact that the agreed $100,000 was a figure representing an increase in the value of the Coraki property up to the date of the hearing rather suggests that any order for interest should only date from the time of the hearing but the Court will hear the parties further on this issue, if required.
8. It is assumed that the parties will agree on a mechanism to satisfy the charge that the Court has declared. The plaintiff's Statement of Claim (Prayer for Relief 2) seeks an order for judicial sale of the Coraki property. This is the normal way of enforcing an equitable charge. The Court will consider whether such an order should be made if the parties cannot agree.
9. In light of the Court's conclusions on the plaintiff's proprietary estoppel claim it is not necessary for the Court to consider the plaintiff's alternative claim in contract.

The Course of Proceedings and Further Findings on the Cross Claim

Acquisition of the Mercedes Benz - 2010

1. In 2010 Lola Whipps had a serious operation, which involved her receiving lung transplants. Following that surgery, she suffered a complication, which eventually led to her death in 2013. Mr Stenlake claims that at this point she was in a frail and weak state. This is understandable and I accept this part of his evidence as correct. He claims that the deceased was very easily upset and that he did not wish to have any confrontation with her. I also accept this evidence.
2. Following Lola's lung transplant Mr Stenlake purchased a new Mercedes Benz, which he registered in her name. The purchase followed by the registration in her name was deliberate. Mr Stenlake says, and I accept, that during her convalescence Lola told Mr Stenlake that she would love to have a new Mercedes Benz motor vehicle. I infer from the circumstances that after the surgery and its complications she probably suspected that she did not have long to live and that she wanted a little indulgence for herself.
3. When they discussed the purchase Mr Stenlake says that he suggested that he should put the Mercedes into the name of the company he controlled but the deceased refused to accept this, stating that she wanted to have the car registered in her own name. Mr Stenlake says that he was concerned at the deceased's agitation about this issue and that he did not want to cause her any further stress at this time. So he says he caused the Mercedes to be registered in Lola's name as she had asked.
4. I accept his account, including his concession that there was never any discussion between himself and Lola that ownership of the Mercedes would revert back to him or his company at some time in the future. This is quite probable. He is hardly likely to placate the deceased by telling her that the Mercedes Benz was being put in her name but that he really owned it and that it was going back to him later.
5. But Mr Stenlake maintained that he did not intend to gift the Mercedes to the deceased. He says it was clear to him at the time of his discussions about this issue with Lola that her life expectancy was very limited. I infer that he thought that disagreement with her about this issue would generate unpleasantness between them that he would prefer to avoid as their remaining time together was limited.
6. I infer that Mr Stenlake paid all the costs associated with the purchase of the vehicle and paid its regular outgoings after its purchase. Following the deceased's death in January 2013 he claims to have securely garaged the vehicle once it became clear that the defendants disputed the ownership of the vehicle. But he ceased to renew the registration of the vehicle.
7. The defendants maintain that Mr Stenlake made a gift of the Mercedes Benz to the deceased, and that Mr Stenlake has no right to its continued possession. The estate now claims ownership in the car and seeks its return.
8. I find that Mr Stenlake gave the Mercedes Benz to the deceased. Although the evidence in his case supports the fact that Mr Stenlake funded the purchased of the Mercedes, his registering the vehicle in her name was an important symbolic act between them. In my view, it was his deliberate reassurance to her on his part that the vehicle was hers to do with as she chose.
9. The context is important. The Court has accepted evidence that Lola had been trying for a long time and had failed, despite her best efforts, to have Mr Stenlake add her name to the title of the Double Bay townhouse and to his title to the pharmacy business. Mr Stenlake says the deceased had become quite emotional at the time the Mercedes was purchased and that he put the vehicle in her name to placate her. Not only can this be accepted, in my view, it somewhat understates what probably happened. In my view, having failed to get Mr Stenlake's earlier symbolic recognition of her financial and non-financial contribution to their relationship by conceding that her name be added to the title to the Double Bay townhouse and the pharmacy business, she became insistent at this time on having something in her own name from him: this was the Mercedes.
10. I infer in these circumstances that he therefore made a gift of this vehicle to her as an important symbolic part of their relationship. But he did have internal reservations. He was a reluctant giver, evidenced by his insensitive request between her death and funeral for the transfer of the vehicle's registration.
11. The cross-claimants/defendants bear the onus of proving an intention on the part of the plaintiff, Mr Stenlake, to make a gift to the deceased during her lifetime. Surprisingly perhaps in the modern age, there is no presumption of advancement between couples living in a de facto relationship: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, at 260-261. There is no presumption of advancement here as Mr Stenlake and the deceased were not married. So as the plaintiff supplied the consideration for the purchase, equity would ordinarily infer a resulting trust in his favour: Napier v Public Trustee (WA) (1980) 55 ALJR 1; 32 ALR 153, at 158. Registration of the motor vehicle in the deceased's name during her lifetime does not on its own signify an intention to make a gift of it to her: Wirth v Wirth (1956) 98 CLR 228; [1956] HCA 71.
12. But even without a presumption of advancement, for the reasons given above the circumstances here go beyond evidence of mere registration of the vehicle in Lola's name and strongly indicate, in my view, that Mr Stenlake communicated to Lola Phipps that he intended to give her the whole of his interest in the Mercedes Benz. The proper inference is that he intended to give her legal and beneficial title to the vehicle. The Mercedes Benz is estate property and should now be returned to the second defendant. Mr Stenlake has the option in law of paying its market value to the estate, as the vehicle is not so unique as would entitle the cross-claimants to an order for specific restitution.
13. There may need to be adjustments between Mr Stenlake and the estate concerning the loss of the use of the Mercedes vehicle since the deceased's death. But it may be that any benefit that Mr Stenlake obtained by using the vehicle is balanced by the cost of registering it and keeping it garaged and in good running condition. The parties should attempt to agree on such issues. If they are not agreed they can be the subject of further submissions at a hearing to take place on questions as to the form of final relief and costs.

The Other Personal Items Claimed on the Cross-Claim

1. To assist the resolution of defendant's cross-claim, on 11 March 2015 the Court made orders that the parties should identify alleged property of the estate proved to be in Mr Stenlake's possession, the ownership of which was contested, with a view to deciding those contests. The orders required the parties to attend the storage unit at which the plaintiff stored furniture and view the effects removed from the Coraki property, in order to prepare a list of the items located there, from which the defendants would specify the items they claimed to be the sole property of Lola or Glenda Whipps. The defendants were to notify the plaintiff by reference to the list which items they claimed should be the subject of an order of the Court against the plaintiff for delivery up, following which the plaintiff would specify which nominated items he agreed to or refused to deliver up. During the hearing Mr Stenlake's counsel also undertook to provide some items, which the defendants had claimed were the personal property of the deceased, to Mr Ian Whipps on a without admissions basis, and there is no subsisting issue as to those items so delivered.
2. Despite the Court's orders, the parties were not able to reach any ultimate agreement about the way to deal with the balance of the cross-claim. The defendants pressed in correspondence for the return of most of the property contained in the prepared list of items stored at the storage unit. The plaintiff refused to return that property. So the matter was relisted on 9 June 2015, when the defendants sought to rely on a draft amended Statement of Claim, which they were then granted leave to file and eventually did file on 23 June 2015.
3. When the matter was relisted on 9 June 2015, the defendants draft amended Statement of Claim listed additional items for delivery up. That list was extensive, for example, it identified some 43 items which had been disclosed by the inspection of the storage unit for which delivery up was sought, including inter alia a vacuum cleaner, a dog bed, "assorted mops, brooms, shovel, rakes, bucket" and a kitchen bin. But before the Court on 9 June 2015, the defendants ceased to press for delivery up of most of those additional items, despite maintaining their complaint that Mr Stenlake had taken those items without right. In the amended cross-claim filed on 23 June, those items that are not pressed appear in text that has been struck through.
4. The items for which the defendants now seek delivery up are limited to: the Mercedes Benz; wine glasses; Chanel/Prada sunglasses; handbags (Prada beige, Louis Vuitton orange, Bvlgari blue, fawn, YSL black); an Alessi silver fruit bowl and wine glasses; personal papers and documents of the deceased; a Royal Albert dinner set; a Limoges dinner set; Christofle champagne glasses and a linen tablecloth; an Apple iPad, iPhone, the deceased's address books containing farm contractors' addresses and phone numbers; linen removed from the farm; assorted crystal glassware identified in the storage unit, a Venetian glass bowl in form of conch shell identified in the storage unit; and a box of assorted EPNS (electroplated nickel silver) identified in the storage unit.
5. But the only further evidence sought to be adduced on the amended cross-claim was the affidavit of Sean Christian Radburn, the defendants' solicitor, sworn 1 April 2015. That affidavit identifies the items in the plaintiff's possession in Sydney and the storage unit whose delivery up the defendants seek, which list both sides agreed was correct, and annexes inter partes correspondence in which the plaintiff agreed to deliver up some items but refused to deliver up the majority of items. But the affidavit was not evidence in itself of who owned any property or who paid for it. And the defendants conceded on 9 June that their claim was only supported by such other evidence that they had already adduced in relation to questions of ownership of the property. Mr Stenlake objects to the receipt of Mr Radburn's affidavit into evidence. The Court will receive it but in my view it proves very little. The Court directed the parties to provide supplementary submissions regarding the amended cross-claim and indicated that it would reserve its decision without the need for any further oral hearing.
6. The defendants' case was that Mr Stenlake had taken possession of the items listed in the cross-claim without the knowledge or consent of the defendants, thereby depriving the estate of the items. Counsel for the defendants, Ms Winfield, submitted that Mr Stenlake bore the onus of proving that the relevant items belonged to him, because he took the property. Mr Stenlake denies that Ms Glenda Whipps, as first cross-claimant and not being an executor of Lola's estate, has any interest in the property identified in the cross-claim, and denies that Mr Ian Whipps, as second cross-claimant, has established that at the date of Lola's death she had any interest in the identified property.
7. On 12 June 2015, Mr Stenlake's solicitors wrote to the defendants' solicitors stating that certain items the defendants claimed were available for collection. The items comprised 7 prints; a set of keys to the Coraki property; diamond appraisals; the deceased's address books; a box of assorted crystal and glassware; a box of assorted 'EPNS' (electro plated nickel silver); and some papers of the deceased. The items were collected on behalf of the defendants on 19 June 2015, without any admission as to liability.
8. The 23 June 2015 amended cross-claim added certain items to the defendants' claims for orders against Mr Stenlake for the return of personal property. The defendants seek relief in terms of the delivery up of the following additional items, which were said to be disclosed by inspection of the storage unit pursuant to the Court's orders on 11 March 2015: 1. personal papers and documents of the deceased; 2. assorted crystal glassware identified in the Evan Head storage unit; 3. a Venetian glass bowl in the form of a conch shell, identified at the Storage Unit; and 4. "box assorted EPNS (Electro Plated Nickel Silver)" identified at the Storage Unit.
9. The defendants submitted that upon Lola's death, Mr Stenlake became bailee of her property in the Double Bay house, to which property the estate had an immediate right to possession. The defendants submit that in cross-examination Mr Stenlake admitted denying the estate's immediately right to possession, when he said for example: "Q. Ms Whipps had jewellery and handbags and other items of personal adornment and clothing, didn't she? A. She did. Q. None of that has been delivered to the trustee, has it? A. No, it hasn't. Q. You've been asked to give it to the trustee, haven't you? A. I have. Q. You haven't done that? A. No. Q. What is your reason for not doing that? A. Well, we'll resolve that's what today's all about, in my opinion (sic) HIS HONOUR Q. I think what Ms Winfield is asking is why shouldn't - is there any reason why it shouldn't be given to the estimate? A. No. Q. Where is it? A. At home. Q. At home being at Double Bay? A. At Double Bay. […] Q. You said that the reason you kept it was because that's what today was about; is that right? A. Correct. Q. Is it the case that you think that those items belong to you? A. No. Q. Do you accept that they belong to the estate? A. Yes."
10. The defendants submit that as bailee, Mr Stenlake had a duty to act in a manner consistent with the ownership of the property and not to act in a manner repugnant to the terms of the ownership. The defendants say that Mr Stenlake's actions amounted to conversion, as Dixon J defined it in Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204, at 229: "The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, of the destruction or change of the nature or character of the thing, as for example, pouring water into wine or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title. But damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than for the purpose of affecting the immediate right to possession, nor is it always conversion to lose the goods beyond hope of recovery. An intent to do that which would deprive "the true owner " of his immediate right to possession or impair it may be said to form the essential ground of the tort."
11. In relation to the first item of which the defendants seek delivery, Lola's personal papers, the defendants/cross-claimants submit that those documents (which they claim are clearly visible in filing cabinets visible in photographic evidence before the Court) could have clarified issues in the proceedings, and so it may be inferred on the Jones v Dunkel (1959) 101 CLR 298 basis that their production would not have assisted Mr Stenlake's case.
12. But Mr Stenlake submits that the cross-claim cannot succeed. He submits that it fails in four essential respects: (1) it does not cover the items now sought, as it does not sufficiently precisely identify items which correspond with items agreed to have been held at the storage unit, and the defendants have not sought to amend the cross-claim in order to have clarity in this aspect; (2) the defendants have not proved that Lola owned the items claimed, rather than Mr Stenlake, or Mr Stenlake and Lola together; (3) the defendants have not demonstrated that the items were of such unique or special character as to attract an order for delivery up: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at 791-794, and there is no claim for damages in the cross-claim and no evidence of value of any particular item; and (4) the defendants have not established that Mr Stenlake is still in possession of the items.
13. In my view submissions (1), (2) and (3) of these submissions are persuasive and sufficient to dispose of the cross claim, except to the extent that Mr Stenlak has already delivered items of property over to the cross-claimants.
14. Mr Stenlake's evidence is that he purchased the furniture installed at the Coraki property, not Lola. There is no evidence to the contrary and I accept his evidence. In relation to the admissions that the defendants say he made in cross-examination, Mr Stenlake replies in two ways. First, he says that they were in general terms and could not be used to identify any particular item now sought. I agree with this submission. Secondly, he submits that because he returned items to Mr Ian Whipps (on a without admissions basis) in the course of the case and after the Court-directed inspection of the storage unit, the Court could not now be satisfied that any particular item of Lola's property is now in Mr Stenlake's possession. In my view, this is the reasonable inference to draw and I draw it.
15. Mr Stenlake now seeks the dismissal of the defendants' cross-claim.
16. The defendants submit that Mr Stenlake's taking and retention of these various items has another incidental consequence for the proprietary estoppel claim. They submit that the plaintiff cannot now be granted equitable relief on that claim as he does not come to this Court with clean hands.
17. But there are two effective answers to this submission. The first answer is that Mr Stenlake's conduct in relation to these personal items is not sufficiently closely associated with his conduct in reliance upon the promises in relation to the Coraki property to deny Mr Stenlake equitable relief on that claim. The defence of unclean hands operates only where the impropriety complained of has "an immediate and necessary relation to the equity sued for": Dewhirst v Edwards [1983] 1 NSWLR 34 at 51. Here the asserted impropriety in relation to the personal items occurred after the death of the deceased in 2013 and well after Mr Stenlake's equitable rights arose under the doctrine of proprietary estoppel.
18. Moreover, the second answer is that a clean hands defence cannot be fielded against Mr Stenlake's claim for a declaration that he has an entitlement to an equitable charge over the Coraki property. A declaration is statutory relief and not truly equitable relief. A defence of unclean hands is not an answer to a claim for such statutory relief: Lodge v National Union Investment Co Ltd [1907] 1 Ch 300 and Maguire v Makaronis (1997) 188 CLR 449.

Conclusions and Orders

1. In the result the Court has found that the plaintiff Mr Stenlake has been successful in his claim to an equitable charge in the sum of $100,000 over the Coraki property. If the parties cannot agree on what further steps are to be taken in consequence of the making of this declaration, the Court will reserve for further consideration at a relief and costs hearing: whether any interest is due on the $100,000, and whether an order for judicial sale of the Coraki property is required.
2. The cross-claimants have been successful in their claim that the estate of the late Lola Whipps is the legal owner of the Mercedes Benz motor vehicle, Mr Stenlake having given it to her as a gift. But on this issue too there are a number of matters on which the parties will need to consult with one another and attempt to reach agreement. If the parties cannot otherwise agree the Court will hear submissions on: if the vehicle is not returned, what its market value is and whether there is to be any dispute about the value of its use and the cost of its upkeep since the deceased's death.
3. Finally, Mr Stenlake has been successful in arguing for the dismissal of the remainder of the cross-claimant's claims for the personal property and effects of the deceased apart from the items that he has agreed to return to the plaintiffs, most of which have now already been returned.
4. The parties have had a mixed result, which may lead to arguments about costs. The Court will hear short submissions about this issue if the parties cannot agree on costs orders. The Court will not grant liberty to apply as I will be on leave between the end of the week and Monday 8 August 2016.
5. For the above reasons the Court makes the following declarations, orders and directions:- 1. Declare that the Coraki property is charged in equity with the payment to the plaintiff of the sum of $100,000. 2. Order the plaintiff/cross defendant to pay to the second defendant the market value of the Mercedes Benz identified in the Cross Claim (Registration Number supplied but not recorded in this published judgment) or that the said vehicle be returned to the second defendant as the executor of the estate of the late Lola Whipps. 3. Order that the parties file a list of the items returned by the cross-defendant to the cross-claimants but that the cross-claim is otherwise dismissed. 4. Direct the parties to exchange submissions about costs and any other issues as to relief by 4.00pm on Friday 5 August 2016. 5. List the proceedings for any argument about the form of further relief on Friday 12 August 2016 at 9.30am before me.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2016