JUDGMENT
His Honour:
1 This is another episode in unfortunately bitter and protracted litigation between mother and son. In Woods v Woods [1999] NSWSC 275 I decided, on 31 March 1999, that in consideration of the mother, Desre Clair Woods (Desre"), contributing $11,500 to the purchase of a property at 24 Waite Street, Bateau Bay ("the property") the son, Glenn Woods ("Glenn"), and his wife, Marcia Woods ("Marcia"), agreed that she would be permitted to live in the property for life and that Glenn and Marcia would continue to pay the mortgage payments in respect of it ("the contract"). I held that Desre was entitled to a declaration of the subsistence of the contract, which had been denied by Glenn and Marcia. There had not at that stage been full argument as to whether Desre should have an order for specific performance, which up to that time had been the principal remedy that she claimed. Objection had been taken on behalf of Glenn and Marcia that the requirement of supervision by the Court of the payment of future mortgage instalments ought preclude such an order. The matter was then stood over for further hearing on the issues of relief. There was therefore no judgment in Desre's favour for specific performance in any form, only a finding that the contract subsisted and that Desre was entitled to a declaration of its subsistence. It should be added that, up to that time, there had been no litigation of the existence of a term of the contract, express or implied, that Glenn and Marcia were obliged to maintain the property during Desre's lifetime, far less as to whether there had been a breach, repudiatory or not, of that obligation, if it existed.
2 On 23 April 2000 on behalf of Glenn and Marcia it was announced in Court by their counsel that they now recognised the contract (in the face of the Court's declaration of its subsistence) and intended to abide by it. They had at all times up to that point fiercely denied its existence. They then contended that, by reason of their new found willingness to perform the contract, no specific relief was necessary. Thereafter, on the same day, it was announced in Court on Desre's behalf that she desired to obtain damages for loss of bargain, rather than any form of specific relief. Glenn and Marcia then said that, as Desre had at all times continued to live in the premises and had not in any way accepted the repudiation of the contract constituted by their denial of it before their change of heart, she could not now do so and obtain damages for loss of bargain.
3 On 15 September 1999 Desre filed a notice of motion seeking relief in relation to the alleged repudiation of the contract by reason of Glenn and Marcia's breach of its term for the maintenance of the property, and the acceptance of that repudiation by Desre. Declaratory relief to that effect was sought by the notice of motion. Whilst that was not relief appropriate to be sought by notice of motion, it seems to me that, no later than that time, an unequivocal stance was taken by Desre that she regarded the contract as at an end by her acceptance of a repudiation constituted by a refusal to meet an obligation to maintain the property. Subsequently, a more appropriate application was made, to amend her cross claim. That application was opposed, but was granted by me on 24 February 2000: Woods v Woods [2000] NSWSC 179. Pursuant to the leave granted, Desre filed an amended cross claim on 1 March 2000. The material portions of that cross claim are as follows:
"3A Further to the agreement referred to in paragraph 2 above, there was at all material times an implied term as between the parties that the cross defendants would, in addition to paying the mortgage, maintain the selected property in a condition fit for habitation by the cross claimant during her lifetime, or alternatively, for as long as she chose to reside in the premises.
Particulars of the Implied Term
(a) The fact that prior to moving into Waite Street, the cross claimant resided with the cross defendants in their house which was properly maintained and fit for habitation.
(b) The fact that the cross defendants promised to buy a house using the cross claimant's money and that she could move from the cross defendants' house into the newly acquired premises.
(c) The fact that the cross claimant was being invited to move into the newly acquired premises by the male cross defendant in order to resolve interparty conflict caused by the cross claimant residing with the cross defendants.
(d) Acceptance of the $11,500 from the cross claimant by the cross defendants.
(e) The age and financial position of the cross claimant at the time of entering into the agreement.
(f) The relationship of the cross claimant to the male cross defendant.
(g) The previous financial and material support given by the cross claimant to the cross defendants.
(h) The promise given by the cross defendants to the cross claimant that in exchange for the money being contributed by the cross claimant, such money to be used to purchase the residential premises, the cross claimant could reside in the premises for life or for as long as she chose.
(i) The fact that residential premises from time to time require maintenance.
(j) The fact that the cross claimant was paying money to the cross defendants to be allowed to reside in the selected premises.
(k) The fact that the selected premises were inspected prior to purchase by the cross claimant and accepted as fit for habitation.
(l) The fact that the selected premises were maintained by the cross defendants up unitl the cross claimant refused to give the cross defendants vacant possession.
(m) The fact that the selected premises were purchased in the names of the cross defendants and that it would revert to them upon the death and/or vacation of the premises by the cross claimant.
…
6A Further, in respect to the facts matters and circumstances pleaded in paragraph 3A above the cross defendants have since in or about April 1995 failed to maintain the property in a condition fit for habitation by the cross claimant despite requests by the cross claimant that they maintain the property.
6B The cross defendant's [sic] refusal to maintain the property constitutes a breach of the implied term.
6C The cross claimant has since April 1995 continually requested the cross defendants to repair and maintain the property. The cross defendants have ignored all requests and continue to be in breach of the Agreement.
6D The cross defendants continual breach of the implied term pleaded in 3A above constitutes a repudiation of the Agreement, such repudiation being accepted by the cross claimant."
4 Glenn and Marcia's answer to this, by their amended defence to cross claim filed on 15 March 2000, was a denial of the implied term; a denial of "each and every fact asserted by way of particulars of the implied term"; a denial that they "had an obligation to maintain the property in a condition fit for habitation by the Cross Claimant or at all"; an allegation that if there were such an obligation, it had been met; and a denial that Desre had made any request for maintenance of the property. Equally, Glenn and Marcia in terms denied any repudiation of the agreement by them and its acceptance by Desre. It is significant in the light of the evidence later given that this amended defence to cross claim was on 15 March 2000 verified by the affidavit of Glenn Woods.
5 I have already had occasion to pass upon the credibility of the relevant witnesses: [1999] NSWSC 275 [19], [20] and [21]. I found that Desre, despite some difficulties in her evidence, gave the impression of attempting to tell the Court the truth about the matters she deposed to; on the other hand, I found Glenn a witness of very low credibility. My original impression of his credibility was not improved by the conflicts between his affidavits and his oral evidence on the recent hearing before me. Marcia I also found a witness of little credibility. These things should be borne in mind in relation to the various findings of fact that I make below.
6 Desre's evidence concerning this aspect of the case was as follows. She deposed that it was an express term of the agreement for her occupation of the property that Glenn and Marcia would, in addition to the mortgage, pay rates, insurances and all repairs and maintenance of the property. The mortgage has continued to be paid. From February 1994 until April 1995 Glenn provided regular maintenance of the property. He mowed lawns, did gardening and painted some rooms of the house. In March 1995 he commissioned and paid a plumber to fix taps. Things changed when in April 1995 Desre allowed her other son, Richard, and his wife, Amanda, to occupy the property along with her. At that time they were down on their luck. It was in my view not inconsistent with the contract for Desre's occupation of the house that she should for a period allow her other son and his wife to live in the house with her; it was her residence in which she could have guests as she chose. However, as was apparent at the earlier trial and again obvious at this trial, this infuriated Glenn and Marcia and was the point of the parting of the ways between Desre and Glenn. In June 1995 Glenn, at Desre's request, engaged and paid an electrician to replace the light and exhaust fan in the bathroom and some lights in the kitchen. Since that time, Glenn and Marcia have done no maintenance work on the property. In May or June 1998 the hot water system exploded. Desre saw the winter through without hot water. In August 1998 she wrote to Glenn indicating the need for replacement of the hot water system, stating her impecuniosity and asking if he could assist. The circumstances in which she says the note was sent were as follows. The claim for $17,000 in respect of which Desre has obtained judgment against Glenn and Marcia in this Court was originally pursued by her against them in a Local Court. When the present proceedings were commenced and that claim incorporated in them, she discontinued the Local Court proceedings. Thereupon, Glenn and Marcia obtained judgment against her in the Local Court for the costs of those proceedings. So bad is the blood between these parties that that judgment has been enforced and, by virtue of an order for payment by instalments, Desre has been paying out of her pension the sum of $10 per week by cheque in discharge of that obligation. It was with one of the weekly cheques that she says that the note concerning the hot water system was sent in about August 1998. All the cheques were negotiated. Nothing was done by Glenn to answer or otherwise respond to this request. Subsequently, Richard organised for a second hand hot water system to be installed in the property so that Desre did not have to go through winter 1999 without hot water. There was no further communication between mother and son until in October 1999 Desre wrote Glenn a further letter as follows:
"I had the plumber put broken hot water cylinder in garage to show you where seam had split. It was old, they only last 12 to 14 years.
As I told you in note with one of my cheques to you a long time ago, I knew you would'nt [sic] replace it for me, as the cost was between $900 and $1,000 for solar connected. I hesitated telling you, as I knew how pleased you both would be knowing my discomfort with no hot water that first winter. Rick could'nt [sic] stand me going through another winter, he replaced it with a smaller tank, not connected to solar, heats by off peak, but I had hot water.
Wyong council will take tank when required, ring them, and leave on footpath.
From the woman who used to be your mother."
7 In response to this evidence Glenn by affidavit denied that it was an express term of the contract that he and Marcia would pay all repairs and maintenance of the property. He denied that he ever performed any maintenance to the property; that he ever mowed the lawns; or that he ever did any painting. He denied that his mother ever asked him to have a plumber fix the taps or an electrician do work in the bathroom or kitchen; he denied that he ever engaged tradesmen to do any of that work. He specifically said that he has done no maintenance on the property since its purchase in 1994. He denied that he received his mother's handwritten note in August 1998 (although all her cheques were cashed) and says that the first communication he received is her note of October 1999 set out above.
8 However, his evidence in cross examination was quite different and ought be set out at length:
"Q …. What did you say to her to bring this up?
A I said to her if you want to move into Waite Street I will pay the mortgage and I will pay the rates and you look after the rest.