Waldock v Waldock

Factual Background 6Until the middle of 2010, the plaintiff and Essie lived in the family home at Warilla. They have four surviving children. The defendant is the eldest. He does not get on with his siblings. In cross- examination, he said that he had not spoken to them "in 20 years", although it seems clear that that was an exaggeration, since he deposes to a number of conversations with them in recent years concerning their parents. 7In 2008, Essie had a partial stroke and was diagnosed as suffering from the early stages of senile dementia. From that time, the plaintiff cared for Essie although he himself had a number of health issues. He was and remains on a TPI (totally and permanently incapacitated) pension as a result of anxiety and related conditions arising from his war service. He also has problems with his joints and, at least from the beginning of 2010, has walked with a frame. 8In July 2010, Essie was diagnosed with bowel and liver cancer. Her bowel cancer was operated on on 31 July 2010 and she was discharged on 18 August 2010, when she returned home where the plaintiff continued to care for her. 9In September 2010, while taking Essie to the doctors, the plaintiff tripped and fell down some escalators. The plaintiff originally suggested that that occurred on 22 September 2010, but I accept the defendant's evidence that it occurred on 9 September 2010. The plaintiff says he broke his femur then. The defendant, on the other hand, says that the plaintiff was taken to hospital after the fall, discharged himself, and then went home where he had another fall and that is when he broke his femur as well as tearing tendons in both shoulders. In any event, the plaintiff was admitted to hospital where he remained until 13 October 2010. 10Initially, the defendant and his siblings took it in turns looking after Essie while the plaintiff was in hospital. However, those arrangements involved substantial travelling and Essie expressed a desire to remain at the defendant's home, which is what happened. 11The plaintiff says that while he was in hospital he had a conversation with the defendant in words to the following effect: Son:"My wife has been taking Mum to town every day. [He then showed me some photographs taken in the Sydney city area] When you think of it you will have to go into a hospital or a home. As I have told you before you are not well enough to look after yourselves. Going into a home will cost you a lot of money, between $235,000 and $250,000 each. When they get you in there you won't be able to go out and drive your own car. You will be locked in a room all day. All you will have is a chair to sit on, an electric light over your bed and a TV. That is all you will get." Me:"We can't do that. You know how much money is in my account $800,000. If I have to pay that money into a home we will lose it. There will be nothing left." Son:"You can come and live at my place. We'll look after you until you die." Me:"I am prepared to give you the $400,000 off the top provided you look after Mum and I comfortably until we die." Son:"That will be OK, we will work on that." Me:"If you are happy with that arrangement so am I because I think you will look after your Mum and I." In cross-examination, however, the plaintiff said that he could not remember where or when the conversation took place. 12The defendant denies that the conversation in the terms alleged by the plaintiff took place, or that any conversation occurred in which the plaintiff offered to pay the defendant $400,000.00 in exchange for the defendant agreeing to look after him and Essie. The defendant says that the plaintiff asked whether he could stay with the defendant when he was discharged "until I get my strength back". The defendant agreed. He says that, following that conversation, he asked the plaintiff's doctor to delay his discharge until 13 October 2010, so that he had sufficient time to prepare his house for the plaintiff. The defendant lives in a substantial two-storey house. However, the bedrooms and bathrooms are upstairs and it seems clear that the plaintiff would not, at least initially, be able to get up the stairs. The defendant, therefore, took steps to prepare a downstairs room to be used by his parents as a bedroom, installed some washing facilities in an adjacent laundry and built a new shower and toilet in a downstairs workshop. The defendant also installed timber access ramps, cleared obstacles that would hinder movement and installed a television in a downstairs room for his parents' use. At about that time, the defendant says that the plaintiff said to him: I don't want to be a burden on you financially for looking after mum. I am going to give you $5,000. The plaintiff then gave the defendant a cheque. The plaintiff's bank records show that that cheque was paid on 4 October 2010. 13The plaintiff also gave the defendant a cheque for $5,900 on 6 October 2010. That cheque was given to the defendant to reimburse him for costs he incurred in preparing his house to accommodate his parents and for the costs of a wheelchair he had purchased for the plaintiff. 14The defendant denies that, at that stage, he thought that there was a real prospect that the plaintiff and Essie would stay with him for a long time. He says that his expectation was that they would return home when the plaintiff had recovered. 15The plaintiff and the defendant give quite different accounts of circumstances in which the $400,000.00 was paid. 16According to the defendant, the plaintiff told him on 15 October 2010 that he was going to give him and his wife some money to show his appreciation for what they were doing for the plaintiff and Essie, although at that stage there was no mention of the amount. Subsequently, on 20 October 2010, the defendant drove the plaintiff and Essie to their home in Warilla to collect some personal things. The plaintiff then asked the defendant to drive him and Essie to the local branch of St.George Bank. The defendant waited with his mother while the plaintiff transacted some business. The plaintiff then gave the defendant a bank cheque for $400,000 made payable to him and his wife. The defendant was taken aback and expressed gratitude for the cheque. In response, he says the plaintiff said: We really appreciate what you and Chris [the defendant's wife] have done. When they returned home, the defendant says the plaintiff had a conversation with his wife in words to the following effect: Plaintiff"Did you see what Robert [that is, the defendant] got? Chris:"yes" Plaintiff:"Well its [sic] half yours I can't thank you enough for what you did for Essie and I" Chris:"No just give to Robert, He's your son" Plaintiff:"No it's half yours" In cross-examination, the defendant insisted that these passages accurately recorded the substance of what the plaintiff said - and that, in particular, the gift was expressed to have been for past services. 17The defendant says that he deposited the cheque into his and his wife's account on 22 October 2010. Later, on 9 November 2010, the defendant says that the plaintiff said to him that the $400,000 was his inheritance and the plaintiff explained that, under the terms of his will, his four children were to inherit his estate in equal shares, which he estimated to be approximately $1,650,000. In a letter the defendant wrote to the plaintiff on 19 June 2011, the defendant said that that conversation occurred in late December, but in cross-examination he said that that was an error. He says that he fixed the time of the conversation by reference to an electrical storm which he can recall at the time of the conversation. According to him, the bureau of meteorology's website discloses that the only electrical storm during the relevant period was on 9 November 2010. In the light of that conversation, the defendant in his defence undertakes to the court that he will disclaim any entitlement he has under the plaintiff's will and he will not make a claim for any further provision out of the plaintiff's estate. 18The plaintiff's initial account of the payment of the $400,000 was that, about a week after he was discharged, the defendant took him to see a local GP for what he understood to be a dementia test. He says that when he returned home, at the defendant's request, he wrote out a cheque payable to the defendant and his wife for $400,000. He then accompanied the defendant to the defendant's bank, where the defendant deposited the cheque. However, he resiled from this account in cross-examination and said: He got the money, that is the main thing. That was the main thing. The manner and describing how he got it, I can't remember. The plaintiff denies that he ever said that the cheque was the defendant's inheritance. 19Considerable friction developed while the plaintiff and Essie were living with the defendant and his wife. Essie's dementia was progressing. The plaintiff says she was not happy living in the defendant's house, although that is denied by the defendant. It appears that Essie and the plaintiff argued frequently. According to the plaintiff, one of the reasons they did so was that Essie wanted to return home to Warilla whereas he was willing to remain living at the defendant's home. On a couple of occasions, Essie left the house unaccompanied. On one of those occasions, the defendant's wife had to retrieve her and on another the police were called. According to the defendant, the main reason they argued was that Essie was unhappy with the plaintiff. There was also at least some friction between the plaintiff and the defendant. One cause of that friction was the fact that the defendant objected to the plaintiff driving while he was taking Serepax. 20Things came to a head on 18 January 2011. The plaintiff and Essie had argued about what Essie should wear and whether they should go for a drive. In any event, they got into the plaintiff's car. The plaintiff reversed out of the drive and started heading down the street. Essie said something to him which caused him to head back home. He drove down the street and into the driveway at an excessive speed. He swerved to miss the garage door and drove into pillars supporting the roof of the verandah and ended up a short distance from where the defendant was sitting. The plaintiff, somewhat implausibly, says that his foot became stuck between the accelerator and the brake, that consequently he could not stop and that he swerved to miss the garage door because behind it was a new vehicle that had just been bought by the defendant. In my opinion, it is more likely that the plaintiff drove back to the house at excessive speed in anger and then could not stop in time. 21The plaintiff says that, following the accident, the defendant and his wife were abusive towards the plaintiff and Essie which caused them to be very upset, although that is denied by the defendant. The plaintiff says that that night the defendant and his wife went to the local club and he and Essie, after discussing the matter, decided that they would leave the following morning. They then went to bed. The following morning they got up very early, caught a bus to the train station and two trains to Moss Vale, where they stayed for a time with one of their daughters before moving back home to Warilla. The plaintiff says that following the accident and what the defendant had said to them, they decided they could not remain at the defendant's home. The only explanation the defendant could offer for his parents sudden departure was that the plaintiff left out of a sense of guilt because of the damage he had done to the house. 22The defendant had no contact with the plaintiff or Essie until 27 January 2011, when the plaintiff rang the defendant demanding that the $400,000 be returned. Since that time, Essie has died, although neither the plaintiff nor any of the defendant's siblings had told the defendant of that fact. The defendant says he was not aware that that had happened until he was served with the statement of claim. Understandably, the defendant was upset by that fact.

The $400,000 23There is obviously more behind the events that I have described than the evidence reveals, but what more is difficult to say and ultimately is not relevant to the resolution of this case. The critical question is whether the plaintiff's evidence that it was agreed that the defendant would look after him and Essie for the remainder of their lives in exchange for the $400,000 should be accepted. As I have said, Mr Pike SC concedes that the plaintiff cannot succeed if the court does not accept that evidence. 24In my opinion, it should not. In my opinion, the plaintiff was not a satisfactory witness. There were too many examples of where his evidence was tailored to support his case and where he was forced to resile from his earlier evidence in the face of objective evidence to the contrary for me to be satisfied that his evidence concerning the conversation was accurate. 25The plaintiff said that he did not have a very close relationship with the defendant, that there were two periods of approximately 10 years when the defendant had no contact with his parents and that otherwise the defendant only visited his parents occasionally. However, the defendant produced a summary of his telephone records, which showed that between 2004 and 2011 he spoke to his parents frequently. He said that he visited his parents approximately once every 6 weeks. I accept that evidence. There is also evidence that the defendant exchanged emails with the plaintiff regularly. 26More significantly, as I have said, the plaintiff originally alleged that he and Essie had been poorly treated while they stayed at the defendant's home. The evidence, though, does not bear that out. The defendant went to considerable trouble to accommodate his parents. The accommodation may not have been perfect because it seems clear that the plaintiff needed to be accommodated downstairs. However, the plaintiff conceded in cross-examination that the defendant "worked hard to try and make it as - possibly as comfortable as he possibly could". He also conceded that the defendant was concerned about his welfare, and that that was why he became angry when he drove while taking Serepax. The plaintiff was clearly upset after the accident on 18 January 2011, and it is possible that the defendant said some things that contributed to that state of affairs. However, a neighbour who attended the scene immediately after the accident gave evidence that to his observation the defendant remained calm throughout the whole incident and I am not satisfied that the defendant treated his parents so badly on that occasion that that explains their conduct subsequently. The overall picture that the plaintiff sought to paint of the defendant in his evidence in chief was that the defendant was an uncaring son. It may be that there had been difficulties in their relationship in the past and tensions during the time that they lived together. However, it is quite clear from the evidence that emerged that the defendant did the best he could for his parents in difficult circumstances, and it would have been natural for the plaintiff to be grateful for that fact. 27The defendant's account of how the $400,000 came to be paid was also unsatisfactory. In cross-examination, he ultimately said that he could not recall the circumstances in which the conversation he deposed to took place. The evidence he gave in chief in relation to the actual payment of the $400,000 suggests that the defendant was quite calculating in requesting the money. According to the plaintiff's affidavit evidence, he was taken by his son to have a dementia test and it was immediately after that test that the defendant asked him for a cheque. The plaintiff then said that he wrote out a personal cheque. It is clear, however, that the test that the plaintiff had occurred after he had given the defendant the $400,000, and that that test was to determine whether he was fit to start driving again. The plaintiff does not dispute that he gave the defendant a bank cheque and the defendant gives a plausible account of how that happened. In my opinion, it is likely that the plaintiff obtained a bank cheque because he wanted to make an occasion of the event, and that is more consistent with a gift which was intended to come as a surprise rather than the payment of a debt that the plaintiff thought was owed pursuant to an agreement. 28In addition to these matters, the defendant denies that any conversation of the type alleged by the plaintiff took place. There are difficulties with the defendant's own evidence. He sought quite implausibly to maintain that the plaintiff's day book was used by him as well and that therefore it belonged to them both - no doubt, as a means of justifying why he kept it. In addition, he maintained that the defendant had made it clear that the $400,000 was given to him and his wife in gratitude for past services. However, that, in my opinion, is implausible. The plaintiff had already given the defendant a cheque for $5,000 for caring for Essie. In my opinion, the plaintiff's expectation by that stage was that he and Essie would continue to live at the defendant's home indefinitely and that they would sell their own home. That conclusion is supported by a reference in the plaintiff's day book on 25 October 2010 referring to the sale of the Warilla property and the need to obtain three valuations. It would be surprising if the plaintiff had not discussed that with the defendant. In those circumstances, I think it is more likely that the plaintiff expected at the time he gave the defendant the cheque that he and Essie would continue living with the plaintiff indefinitely and that the cheque was given in gratitude for that fact and that is how the plaintiff would have expressed his gratitude. Nonetheless, generally, I accept the defendant's evidence. In particular, I accept his evidence concerning the way he treated his parents and the circumstances in which the cheque was paid. In addition, it strikes me as plausible that the plaintiff would have said that the cheque was an early payment of the inheritance the defendant could expect to receive. For those reasons, I prefer the defendant's account concerning the payment of the $400,000. 29The conclusions that I have reached dispose of the plaintiff's claim for a return of the $400,000. I should say, however, that even if I had accepted the plaintiff's account of the conversation concerning the $400,000, I would not have concluded that the plaintiff should succeed. In my opinion, the conversation relied on by the plaintiff is not sufficient to establish that there was a contract between the plaintiff and the defendant. As Brereton J said in Ashton v Pratt (No 2) [2012] NSWSC 3 at [32], referring to the decision of Ward J in Darmanin v Cowan [2010] NSWSC 1118 at [206]: As Ward J has recently explained ... there is a rebuttable presumption of fact that arrangements or agreements made in a family are not intended to have legal force, the rationale being that, at the time of making the alleged promise, the parties would not have regarded their arrangements in terms of legal consequences. The presumption is most often applied where the defendant agrees to pay money in the expectation that the plaintiff will do a particular thing - such as undertaking a course of study - and the plaintiff does the thing in question and then claims the promised amount. But there is no reason why the principle should not apply in the reverse case, where the money has been paid by the plaintiff and it is alleged that the defendant has not engaged in the promised conduct. 30In this case, the alleged contract arose from a conversation while the plaintiff was in hospital to which no one else was a party. There was no attempt to cloak the conversation in any form of formality. The plaintiff simply said words to the effect of "I am prepared to give you the $400,000 off the top provided you look after Mum and I comfortably until we die" and the defendant replied "That will be OK, we will work on that". The language used - in particular, the defendant's reply - is not the language of contract. There was no attempt to address what would happen if the plaintiff and Essie could no longer live with the defendant or chose not to. In those circumstances, I do not think that the presumption was rebutted in this case. 31Nor do I think that the principles applicable where there has been a failure of consideration or the approach that the High Court took to the imposition of a remedial constructive trust in Baumgartner provide the plaintiff with any assistance. 32Recovery of money on the basis that there has been a failure of consideration is not restricted to cases where the plaintiff has failed to obtain any part of what was intended to be a contractual promise. As Gleeson CJ, Gaudron and Hayne JJ stated in Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68; 208 CLR 516 at [16] in a passage relied on by Mr Pike SC: Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that. The authorities referred to by Deane J, in his discussion of the common law count for money had and received in Muschinski v Dodds (1985) 160 CLR 583 at 619-620, show that the concept embraces payment for a purpose which has failed as, for example, where a condition has not been fulfilled, or a contemplated state of affairs has disappeared. In Muschinski v Dodds (1985) 160 CLR 583 at 620, Deane J had said: ... the principle [that is, the "more general principle of equity" he had identified] operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do ... 33Similarly, in Equuscorp Pty Ltd v Haxton [2012] HCA 7 French CJ, Crennan and Kiefel JJ said: [31] Failure of consideration is one of the factors that makes retention of a benefit prima facie unjust. It was recognised by Lord Mansfield as a ground for a claim for money had and received. It was a criterion of recoverability which survived the rejection in the United Kingdom and Australia of the implied contract theory. This court has, on more than one occasion, described failure of consideration in terms set out by the late Professor Birks: Failure of the consideration for a payment ... means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself. [32] As Gummow J pointed out in Roxborough v Rothmans of Pall Mall Australia Ltd, failure of consideration for the purpose of a claim for money had and received is not confined by contractual principles. In that case there had been no failure of performance by Rothmans of any promise it had made. There was no question of repudiation by it of its contractual obligations. The question was whether it was "unconscionable" for Rothmans as the recipient of payments to retain them in circumstances in which it was not specifically intended or especially provided that it should so enjoy them. The question of unconscionability, as his Honour explained, derived from the general equitable notions which found expression in the common law count for money had and received. (Footnotes omitted) 34As the decision of the High Court in Baumgartner v Baumgartner (1987) 164 CLR 137 demonstrates, in some cases the court will be prepared to impose a remedial constructive trust over property to give effect to the principle stated by Deane J in Muschinski v Dodds. In Baumgartner, the parties to a de facto relationship had pooled their resources to purchase land and build a house on it. The land was put in the sole name of the man. Mason CJ, Wilson and Deane JJ concluded that it was unconscionable for him to claim he held the entire interest in the land and house in circumstances where the woman had contributed towards their purchase and construction in the expectation that they would reside there together. It held that the man held a proportion of the property on a constructive trust for the woman. Whether the remedy of a remedial constructive trust adds anything to the principle stated by Deane J in the circumstances of this case is doubtful. In this case, the defendant did not acquire any property pursuant to a joint undertaking. The question is simply whether the money that was paid could be recovered on the basis that there had been a failure of consideration as explained by the High Court. 35In my opinion, it could not. There is a question whether such a claim can be maintained in circumstances where the defendant's wife is not a party to the proceedings. But even assuming that it can and even accepting the plaintiff's evidence, the $400,000 was not paid for a purpose which has since failed so as to make it unconscionable for the defendant and his wife to retain the payment. It was not, as I have said, paid in order to secure a contractual promise. Nor, for example, was it paid in order for it to be used for some identified purpose. Rather, it was paid to benefit the defendant and his wife in the expectation that the plaintiff and Essie would continue to live in their home and be cared for by them. The fact that those expectations were not realised because the plaintiff and Essie chose to move out does not make the retention of the payment unconscionable. The position may be different where it was the defendant who insisted that the plaintiff and Essie leave or where the defendant made it impossible for the plaintiff and Essie to stay. In those circumstances, it could be said that the basis of the payment had failed. But I do not think that the same could be said where it was the plaintiff and Essie who chose to leave.

36This claim raises two issues. The first is whether the plaintiff has certain items. The second is whether items that he admits he has were given to him or remain the property of the plaintiff. 37I am not satisfied that the defendant has any of the items that he denies having. The list of items that it is alleged the defendant has was drawn up by his sister, Denise, in consultation with other family members, including the plaintiff and Essie. The plaintiff simply asserts in his affidavit that a number of the items on that list have not been returned. He does not himself give evidence that he can recall leaving the items at the defendant's home. I have already found that the plaintiff's memory was not reliable and, given that Essie was suffering from dementia, any list based on her hearsay recollections cannot be regarded as reliable. The items which it is alleged the defendant has not returned and which the defendant says he does not have include Essie's jewellery, some ornaments including a garden fairy, a porcelain show figurine and an antique china pot plant, some aluminium coloured beer steins and glasses, a cloth pouch containing four $5 coins and an umbrella. Leaving Essie's jewellery aside, there is no evidence to suggest that any of these items are valuable. The defendant admits in his defence having a substantial number of other items and pleads that he has made arrangements to return them - which is what happened. It is inherently implausible that he would admit having those items and agree to return them and at the same time deny that he had other items of no or limited intrinsic value. 38As to Essie's jewellery, the jewellery is described in the amended statement of claim as consisting of: (4)Essie's rings (diamond cluster, 2 eternity rings, ruby/diamond, sapphire/diamond rings set, 3 piece ruby set, emerald ring with 5 stones) (5)Essie's necklaces including "E" emblem necklace, chains, earrings, bracelets (6)diamond ring set belonging to the plaintiff. 39As to (6), in his verified defence, the defendant says that he has returned that item, and there is no evidence which specifically contradicts that assertion. There is, therefore, no reason not to accept the assertion in the defence. 40On 27 October 2010, Denise sent a text message to the defendant saying: This is what I will hide - only one thing very valuable (sic) is her essie necklace the others r her day jewellery ... Denise gave evidence that the jewellery she described in her text message was different from the jewellery that is the subject of the claim. However, the description in (5) is so vague that it is not possible to know whether that is the case or not. As I have said, the plaintiff does not give any evidence that he can recall leaving those items behind. It might have been expected that Essie would wear some of them - such as some of her rings - when she left. Given these matters, I am not satisfied that the defendant has any of Essie's jewellery. 41As to the items which the defendant says are gifts, they include a wrought iron setting consisting of a table and four chairs, a metal crocodile nut cracker, an electronic battery charging equipment (although the defendant denied having this equipment in the defence) and a short wave radio. The defendant gave evidence that the plaintiff said that he could have each of those items. It was not suggested that any of the items was of any significant value. They are items that a parent might well agree to give to a son. It is hard to believe that, at the time the second two items were given to the defendant, that the plaintiff had any use for them. Having regard to those matters, I accept the defendant's evidence that the plaintiff gave him those items.

42In his evidence in chief, the plaintiff says that in early October 2010 he had a conversation with the defendant to the following effect: Son:"Dad, can you lend me $5,000. I have bought some equipment for work which needs to be paid for and I don't currently have the money to pay for it." Me:"Ok." The plaintiff then says that he wrote out a cheque for $5,000 and refers to a bank statement showing a withdrawal for that amount on 4 October 2010. However, at the time that the plaintiff swore his affidavit containing that evidence, he did not have his day book. That book contains several undated entries referring to a "loan" of $5,000 to the defendant. One of those entries, which is likely to have been made in May 2010, has the date next to the entry of "6.6.09". It seems clear from this material that when the plaintiff gave his original evidence he had confused the payment he made in June 2009 with the one he made on 4 October 2010. 43The defendant, on the other hand, says that this amount was a gift that was made at about the time of the defendant's birthday as a contribution towards the purchase of a lathe. 44I am not satisfied that the $5,000 was a loan. Although the plaintiff described it in his day book in those terms, that was not a contemporaneous note of the conversation and consequently I think little weight can be put on that evidence. For the reasons I have given, I do not regard the plaintiff as a reliable witness. There is no evidence that the plaintiff ever sought to recover the $5,000 before commencing these proceedings. It would have been natural, for example, if it really had been a loan for the plaintiff to have forgiven the loan as compensation for the defendant looking after Essie. Instead, the plaintiff gave the defendant a further cheque. Moreover, as I have said, there is a presumption that dealings within a family are not intended to create contractual relations. In my opinion, the plaintiff has failed to rebut that presumption.

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: 26 March 2012