For the reasons given I cannot make any order or allowance under s.233 in regard to any of these expenses.
[2]
Payment to Mr Sutherland of a wage for the work that he did on the Property.
[3]
Mr Sutherland claims that an allowance should be made in his favour for the fact that he was on the Property all the time looking after it whereas Mr Corkill was only there occasionally. He said that he should be entitled to something equivalent to a caretaker's or farm manager's wage for his work and evidence was led as to what would be an appropriate allowance for such an employee.
There is nothing in s.233 to the effect that I can or must take into account the value of any labour expended on the Property by Mr Sutherland but even if I can make such an allowance I do not believe that I should in this case..
When Mr Corkill bought his first one third share there was an agreement that he or his wife could put up to 30 cattle on the Property and that Mr Sutherland would look after them for no charge. There was no agreement as to what would happen if that figure was exceeded. Thereafter the number of cattle on the Property belonging to Mrs Corkill fluctuated and Mr Corkill acquired a further one third share in the Property. However, the initial agreement was never amended nor was there any subsequent agreement concerning the care of Mr and Mrs Corkill's cattle.
The evidence does not establish that Mr Sutherland was an employee, whether of Mr Corkill, Mrs Corkill or any partnership. Indeed, it was not suggested that he was an employee. I am not satisfied that there was any agreement between the parties that Mr Sutherland would be paid a wage or that any other financial allowance would be made for any work that he did on the Property.
His description of what he did was vague and consistent with one co-owner living on the Property looking after his own interests. He did some maintenance work, such as fencing and hand feeding of cattle but much work was also done by others and was paid for by Mr Corkill. It is impossible to disentangle work relating to the farming enterprise carried out by Mr Sutherland from the farming enterprise carried out by Mrs Corkill or from work done by Mr Sutherland to look after his own cattle or the cattle that he had on agistment for various third parties.
Mr Sutherland said to Mr Corkill on at least two occasions that he should be paid a wage and Mr Corkill told him to send him an invoice and he would consider the claim. He did not do so.
Mr Corkill said that the arrangement eventually arrived at was that, in exchange for whatever Mr Sutherland did, he would not charge Mr Sutherland any interest on the money that he owed him. Mr Corkill is a more reliable witness and I accept that evidence.
Mr Corkill made various suggestions to Mr Sutherland as how he could make his farming activities profitable and for a while they shared a herd of cattle that were to be raised as commercial steers with the proceeds to be split evenly between them. Mr Corkill also agreed to Mr Sutherland retaining all of the profits of his quarantine station on the Property on the basis that he was doing the work for it. Mr Sutherland agisted cattle belonging to other people on the Property and kept all that money for himself.
Mr Corkill sent regular accounts to Mr Sutherland that did not include any allowance for a wage to Mr Sutherland and he made no objection.
In the absence of any agreement as to a wage or allowance or circumstances raising some entitlement in law or equity to some allowance in favour of Mr Sutherland I can make none.
[4]
Most of the items of expense claimed by both sides relate not to the Property itself but to the farming enterprises carried on there. That is not something I can deal with under s.233.
It is disappointing that I should conclude that I cannot make orders concerning matters as to which there was much evidence and argument. The reason for that lies in the limited nature of this jurisdiction. Even if I could disentangle the finances of these parties is not my function to do so.
During the hearing the question was raised whether the categorisation of all of the payments made between these parties over the years and the nature of those payments should be determined by the taking of accounts.
There is power conferred upon the Tribunal by s.28A of the Act to order an account where a co-owner has received more than his or her share of the co-owned property. In the present case, this could only apply to the money that the Applicants have received with respect to agistment fees or the sale of co-owned cattle. However it is now agreed that there are no co-owned cattle and Mr Corkill does not seek the taking of accounts in regard to any profits that Mr Sutherland has earned from agisting cattle on the Property. The profits from the quarantine station were, by agreement, to have been received by Mr Sutherland in any event.
Apart from that limited power, there is no power conferred upon the Tribunal to order the taking of accounts in a case such as this in order to determine what, if anything, should be allowed against the proceeds of sale in favour of a co-owner under s.233. As previously stated, the entitlement to an order under s.233 should be proven as part of the evidence in the case.
[5]
It is greatly to be regretted that, after hearing a great deal of evidence over four days, I cannot decide all issues between the parties. However as this Tribunal is a creature of statute I can do no more than the Act permits. Unfortunately, for much of their dispute, they will have to seek their remedies elsewhere.
There will be an order for the sale of the Property with the usual mechanical orders for sale and the division of the proceeds. In that division credit will be allowed to Mr Corkill for the money that he spent on the Homestead. Orders will be made by consent for the return to Mrs Corkill of her cattle and semen straws. In drafting these orders I was greatly assisted by counsel and by a draft order they had prepared which I have largely followed with some amendments.
Parties
Applicant/Plaintiff:
Sutherland and anor
Respondent/Defendant:
Corkill
Legislation Cited (2)
Law Act 1958
Actions Act 1958
Cases Cited (1)
Sutherland and anor v Corkill (Real Property) [2011] VCAT 709 (20 April 2011)