Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew

1. [1]

   The plaintiff in these proceedings is Mr Kevin John Lewis. The defendant is Mr Peter William Stewart. Mr Stewart defends the claim by his tutor Ms Peggy Lillian Mayhew, who is Mr Stewart's sister. The case has been conducted on the basis that in late 2014, Mr Stewart suffered a stroke that rendered him legally incapable, at least in respect of being able to conduct his own defence.

2. [2]

   In these proceedings, Mr Lewis makes a claim for the enforcement of certain rights that he asserts in relation to Lot 1 in Deposited Plan 521955, known as 214 Yarramundi Lane, Agnes Banks in this State (Lot 1). Lot 1 is contiguous with Lot 2 in the same Deposited Plan (Lot 2). Lot 1 has an area of about 2 acres. Lot 1 is contiguous with the bank of the Hawkesbury River at Agnes Banks.

3. [3]

   At all material times, Mr Stewart has been the registered proprietor of both Lot 1 and Lot 2. Mr Stewart’s father previously had an interest in both Lots, but that interest passed to Mr Stewart upon his father’s death.

Mr Lewis’ claim

1. [4]

   These proceedings were commenced by a summons filed in Court by Mr Lewis, acting for himself, on 4 January 2016. As I understand it, the only relief sought by Mr Lewis was the extension of the operation of a caveat No AJ986128X that Mr Lewis had lodged against the title to Lots 1 and 2 (although the caveat was not in evidence).

2. [5]

   Leave to file the summons was given by Black J sitting as the vacation judge. The operation of the caveat was extended until 11 January 2016, and consequential orders were made.

3. [6]

   On 11 January 2016, Black J gave Mr Lewis leave to amend his summons to seek leave under s 74O of the Real Property Act 1900 (NSW) to lodge a further caveat in respect of the interest claimed by him based on the same facts as caveat No AJ986128X. The matter was stood over until 13 January 2016.

4. [7]

   Mr Lewis filed an amended summons on 11 January 2016, acting for himself. He expressed his claim as: "100% equity in Lot 1 DP 521955 property".

5. [8]

   On 13 January 2016, Black J gave to Mr Lewis leave to file and serve a further amended summons adequately specifying the final and interlocutory relief which he sought, including any interlocutory relief under s 74O of the Real Property Act, by 22 January 2016.

6. [9]

   An amended summons was filed by Mr Lewis personally on 10 February 2016. In substance, Mr Stewart sought an extension of the caveat under s 74O of the Real Property Act, and what was described as “100% equity in Lot 1 and 30% equity in Lot 2”.

7. [10]

   It appears that on 19 May 2016, a further amended summons was filed on behalf of Mr Lewis, this time by a solicitor retained by him. The principal relief sought by Mr Lewis was a declaration that “a promise was given and or representation made by the defendant to the plaintiff that in return for work performed, materials supplied, services rendered and expenses carried out and incurred by the plaintiff in respect of Lots 1 and 2, the defendant would make a will in which he left to the plaintiff the whole of his interest and estate in Lot 1”.

8. [11]

   Mr Lewis sought a declaration that he relied upon the promise by Mr Stewart and suffered detriment in that he carried out the work requested of him and that "the defendant has acted and is acting inconsistently with the assumption without ensuring no detriment is caused to the plaintiff including expressing an intention to sell Lot 1".

9. [12]

   Mr Lewis claimed that he had an interest in Lot 1 by reason of a proprietary or equitable estoppel.

10. [13]

    In the alternative, Mr Lewis claimed that he was entitled to reasonable remuneration and compensation for the work done, the materials provided, the services rendered and expenses incurred upon a quantum meruit.

11. [14]

    On 8 August 2016, Mr Lewis filed a statement of claim, followed by an amended statement of claim on 19 August 2016. The amended statement of claim was Mr Lewis' operative pleading as at the commencement of the hearing. It was filed by his solicitor.

12. [15]

    In the relief claimed, Mr Lewis sought a declaration that he had an interest in Lot 1 (now being described as the whole of the land contained in certificate of title Folio Identifier 1/521955) "on the basis of proprietary and/or equitable estoppel" (Prayer 1). Alternatively, Mr Lewis sought reasonable remuneration for work done and materials provided, services rendered and expenses incurred by him upon a quantum meruit (Prayer 4). Mr Lewis sought certain other relief, including by Prayer 5, an order that an account be taken in relation to the work done, materials provided, services rendered and expenses incurred by him to determine the amount to which Mr Lewis was entitled.

13. [16]

    It is to be noted that Mr Lewis did not include allegations in his amended statement of claim for the purpose of quantifying the value or cost of any work done by him. Further, as will be seen, when Mr Lewis sought to amend his statement of claim further by claiming a right to damages for breach by Mr Stewart of an agreement to leave Lot 1 to Mr Lewis in his will, Mr Lewis did not seek to quantify the amount of the damages claimed. Mr Lewis proceeded upon the basis that, if liability was determined in his favour in a way that entitled him to compensation, further steps would be necessary in the proceedings to quantify the amount. As I understand the approach taken by Mr Stewart, Mr Lewis' approach was not opposed.

14. [17]

    Relevantly, by his pleading, Mr Lewis alleged that in 2001, Lot 1 contained varying quantities of sandy soil, gravel and stockpiles of tailings, which had been stored and processed on the land commencing about 1980 in connection with river sand and gravel mining operations (par 4).

15. [18]

    In pars 5 to 12, Mr Lewis pleaded the history of operations on Lots 1 and 2 concerning sand mining and related works, leading to their remaining on the Lots "unwanted waste including large quantities of old equipment, pieces of plant and stockpiles of tailings".

16. [19]

    The materials that Mr Lewis alleged had been left on Lots 1 and 2 were the consequence of sand mining and related works carried out by parties other than Mr Lewis.

17. [20]

    Mr Lewis alleged that from the mid-1990s, by oral agreement between himself and Mr Stewart and Mr Stewart's now deceased father, Mr Lewis occupied Lot 1 and a small portion of Lot 2 for $2000 per annum, paying this rental until about 2003 (par 10). Mr Lewis used the Lots for storage, repairs and maintenance of his equipment (for his then operating dragline business, operated through a company) (par 11).

18. [21]

    Mr Lewis further alleged that, when the previous sand mining operations ceased, he commenced a cleanup and did other work to Lot 1 and the part of Lot 2 occupied by him (par 12).

19. [22]

    Mr Lewis alleged in par 13 that the work done "was to the acknowledgement, agreement and for the benefit of the defendant and the then co-owner". Mr Lewis gave the following particulars:

20. [23]

    Mr Lewis pleaded the nature of the work carried out by him in respect of the Lots in par 14. He gave the following particulars:

21. [24]

    Mr Lewis alleged in par 15 that the works were continued and carried out until the end of 2014 for no payment, except for an inconsequential amount.

22. [25]

    Mr Lewis alleged that, in carrying out the works, he used his own equipment or his company's equipment, or hired equipment, or paid contractors and employees, provided materials, and personally carried out thousands of hours of work at his personal or his company's expense (par 16)

23. [26]

    In par 21, Mr Lewis alleged that in the period 1998 to 2003, he offered to Mr Stewart and his father on numerous occasions to buy Lot 1, but in response was told that he would be given the first option if it was decided to sell the property.

24. [27]

    Then, in pars 22 and 25, Mr Lewis made the following allegations:

25. [28]

    Mr Lewis then referred to the fact that Mr Stewart suffered a stroke in 2014, and that his tutor in these proceedings apparently holds a power of attorney from her brother. He alleged in par 27 that in August to October 2015, Ms Mayhew took steps to evict Mr Lewis and demanded that Mr Lewis remove his belongings from the property.

26. [29]

    Mr Stewart alleged in pars 32 to 34:

27. [30]

    Finally, in par 36, Mr Lewis alleged that it would be unconscionable for Mr Stewart to keep the benefit of his work without paying Mr Lewis a reasonable sum in return if Mr Lewis was denied an interest in Lot 1, and he claimed a reasonable remuneration upon a quantum meruit.

28. [31]

    It may be noted that, even though in his pleading Mr Lewis alleged that he was encouraged to carry out works by Mr Stewart having made statements about leaving Lot 1 to Mr Lewis in Mr Stewart's will, no specific relief was included in the prayers for relief on that basis.

29. [32]

    Mr Lewis has occupied Lot 1 for the whole of the period since the mid-1990s. He claimed that he paid rent up to 2003. He has continued to occupy the property after that time, with the apparent agreement or acquiescence of Mr Stewart, at least until Ms Mayhew took steps to terminate his right of occupation. However, apart from pleading that the work that he carried out on the property was done with the agreement or acquiescence of Mr Stewart, the only promise that he has pleaded is a promise by Mr Stewart to leave Lot 1 to Mr Lewis in Mr Stewart’s will. As will be seen, it is significant that Mr Lewis has not claimed that Mr Stewart gave Mr Lewis any current interest in Lot 1 that was more extensive than a lease (so long as a lease may have continued), or some license to occupy the property. In particular, Mr Stewart has not alleged that he was given an interest in Lot 1 that would entitle Mr Lewis to carry out works on the property that would change its physical nature without Mr Stewart’s request. Put more directly, Mr Lewis has not claimed in his amended statement of claim that he was given an interest in Lot 1 that entitled him to treat the property as his own, before he received the title to Lot 1 by means of the execution of the will promised by Mr Stewart.

Mr Stewart’s defence

1. [33]

   Mr Stewart's defence was filed on 14 September 2016, immediately after Ms Mayhew consented to act as his tutor. As Mr Stewart suffered his stroke before the commencement of these proceedings, the conduct of his defence by Ms Mayhew has obviously been inhibited by the fact that Mr Stewart is incapable of giving proper instructions to respond in detail to the factual allegations made. This fact is reflected in the terms of the defence. Although some admissions are made concerning a number of relatively uncontroversial allegations, many of the responses take the form that Mr Stewart does not know and cannot admit particular allegations of fact. That includes the allegation in par 14 of the amended statement of claim concerning the works carried out by Mr Lewis.

2. [34]

   In response to pars 32 and 34 of the amended statement of claim concerning the allegation that Mr Stewart assured Mr Lewis that he would leave Lot 1 to Mr Lewis in Mr Stewart's will, Mr Stewart has pleaded that he does not know and cannot admit the allegations, and added that "he is alive and the time for administration of his will has not yet arrived. The Defendant or the Defendant's Attorney on his behalf is entitled to deal with the Defendant's assets to provide for his care during his lifetime" (see pars 24 and 26).

3. [35]

   Ms Mayhew also pleads on behalf of Mr Stewart that Mr Lewis has not provided an account of Mr Lewis' alleged expenditures said to have been undertaken in relation to the land (pars 27 and 28).

4. [36]

   Ms Mayhew on behalf of Mr Stewart then in par 29 has pleaded the following matters in answer to the whole of the amended statement of claim:

5. [37]

   I have acknowledged the difficulties that Ms Mayhew faced in pleading a positive defence to Mr Lewis’ claim. However, in a formal sense Mr Stewart did not plead an alternative claim whereby he alleged that, if he had indeed encouraged Mr Lewis to carry out works on the property by either promising to leave Lot 1 to Mr Lewis in his will, or by telling Mr Lewis that he had made a will to that effect, the implementation of any promise to leave Lot 1 to Mr Lewis was contingent on Mr Lewis only dealing with the property in a manner approved of by Mr Stewart during Mr Stewart’s lifetime. That is, Mr Stewart did not plead an alternative claim that Mr Lewis either lost his right to expect Lot 1 to be left to him in Mr Stewart’s will, or that Mr Lewis’ expectation was in some other way contingent on the manner in which he dealt with the parts of the two lots that he occupied. As I understand the way Mr Stewart’s case was conducted, it was in substance to deny that Mr Stewart ever made the promises or representations alleged by Mr Lewis. Mr Stewart did not in any substantial way prosecute a case that acknowledged that Mr Lewis had carried out considerable works with the encouragement of Mr Stewart by means of promises that Lot 1 would be left to Mr Lewis in his will, but that promise was contingent on some basis and by reason of Mr Lewis’ failure to meet the contingency, it was no longer unconscionable for Mr Stewart to refuse to leave Lot 1 to Mr Lewis.

Mr Lewis’ application for leave to amend

1. [38]

   On 4 September 2017, the proceedings were set down for hearing before me with 2 days allotted to the hearing. At the hearing, Mr IR Coleman SC appeared with Ms LM Clarke for Mr Lewis, and Ms MM Pringle appeared for Mr Stewart.

2. [39]

   In par 2 of his written outline of submissions provided to the Court before the hearing in compliance with the Usual Order for Hearing, Mr Lewis set out a claim for the following relief:

3. [40]

   At the beginning of the hearing, Mr Lewis applied for leave to further amend his amended statement of claim, to replace his prayers for relief by a claim for the orders contained in par 2 of his written outline. That application was made on the basis that Mr Lewis would solely rely upon the allegations of fact already made in the amended statement of claim.

4. [41]

   The application for leave to amend occupied some time on the morning of the first day of the hearing, and after some discussion as to whether in reality Mr Lewis was seeking to rely upon some additional allegations of fact, Mr Lewis on the morning of the second day of the hearing produced a draft further amended statement of claim (which became MFI 1).

5. [42]

   The draft further amended statement of claim contained the same allegations of fact in the pleadings and particulars as were contained in the amended statement of claim. However, the prayers for relief in par 2 of the written outline were substituted for the prayers for relief in the amended statement of claim.

6. [43]

   The only further change was that the following particulars were inserted under prayer 3 of the claim for relief, being the declaration that Mr Stewart repudiated the contract by failing to execute the will prior to his ceasing to have the capacity to do so, and by intending to sell Lot 1:

7. [44]

   It is an unorthodox approach for factual particulars of a claim to a declaration to be included in the prayers for relief, rather than for appropriate allegations of fact to be included in the factual pleading.

8. [45]

   Two subsidiary consequences of Mr Lewis’ application to amend his statement of claim must be noticed. First, he has abandoned his alternative claim for the payment of reasonable remuneration on the basis of a quantum meruit. Secondly, although he continues to claim a declaration that he has an equitable estate or interest in Lot 1, he does not seek any order preventing Ms Mayhew, as Mr Stewart’s attorney, from selling Lot 1. Instead, he seeks by prayer 12 an order that Mr Stewart be restrained from alienating or disposing of the proceeds of sale of Lot 1 or Lot 2 until the amount of the damages or the quantum of his equitable interest in the proceeds of sale of Lot 1, or the equitable compensation payable to him, has been determined by the Court.

9. [46]

   I will grant to Mr Lewis the leave that he seeks to further amend his statement of claim. He has not, in any significant way, sought to rely upon any additional evidence to which Mr Stewart could not adequately respond. The thrust of the amendment is to elaborate Mr Lewis' claim based upon the alleged agreement by Mr Stewart to leave Lot 1 to Mr Lewis in his will. The basis of that claim was first raised by Mr Lewis in his further amended summons filed on 19 May 2016. The claim was repeated in pars 22 and 25 of the amended statement of claim filed on 19 August 2016. It appears, as I have noted above, that even though Mr Lewis pleaded that Mr Stewart agreed to leave Lot 1 to Mr Lewis in his will, there was an omission to make a specific claim for relief on that basis. Ms Mayhew appears to have understood that the issue remained live in the proceedings, as in par 29 of the defence she filed on behalf of Mr Stewart she pleaded that Mr Lewis' claim was premature in so far as he sought the enforcement of a testamentary contract, as the time for the execution of any will made by Mr Stewart has not arrived.

10. [47]

    I am satisfied in the circumstances that Mr Lewis' application to amend should be regarded as a refinement of his existing claims, rather than the belated introduction of a new claim.

11. [48]

    Because only two days had been allotted for the hearing, and both parties were anxious for at least the evidence to be completed in the allotted time, the Court did not hear full argument, and did not rule on the application by Mr Lewis to further amend his amended statement of claim. The parties were content to proceed with the hearing on the basis that the Court would reserve its decision on the application for leave, and the parties would deal with the possibility that leave would be granted as best they could.

12. [49]

    That is obviously not an optimal approach, either from the perspective of the Court or the parties. It was adopted in the present case by agreement, as I understand it, because of a strong appreciation of the desirability of legal costs being curtailed.

13. [50]

    As it has happened, the remaining hearing time only allowed the parties to complete the tender of the necessary evidence and the cross-examination of witnesses who were sought to be cross-examined. There was no time for the parties to make their submissions to the Court.

14. [51]

    The parties joined in asking the Court to receive written submissions in lieu of the Court having any opportunity to hear from the parties orally. I acceded to that course, although I reserved the right to call for further oral submissions if I came to the view that the parties' written submissions did not provide adequate assistance to the Court on all of the issues that required decision.

Evidence of Mr Lewis

1. [52]

   Mr Lewis relied upon affidavits sworn by him on 19 May 2016, 28 November 2016, and two affidavits sworn on 18 September 2017. He also relied upon an affidavit of his brother, Steven Lewis, affirmed on 16 November 2016.

2. [53]

   Mr Lewis was born on 7 September 1963. He has been in the drag-lining and dredging industry since the age of 15.

3. [54]

   In about 1980, Mr Lewis' father began leasing Lot 1. The father was a river miner and mined the Hawkesbury and Nepean Rivers at different locations for sand, soil and gravel.

4. [55]

   Mr Lewis' father and two colleagues started a company called Whatley Sands Pty Ltd. Whatley Sands leased Lot 1 off Mr Stewart's father and his Uncle Ronny.

5. [56]

   Mr Lewis started working for Whatley Sands about 6 months after it started mining the Hawkesbury River below Lot 1, and he has been associated with the property ever since.

6. [57]

   During this period, Lot 2 comprised a 40 to 50 acre farm. The farm included an old active orange orchard and vegetable farm operated by Mr Stewart's father and his Uncle Ronny.

7. [58]

   Lot 1 was the area where sand, soil, gravel, and stock were piled, stored and processed over a number of decades for sand mining purposes. Storage on Lot 1 included front-end loaders, drag lines, trucks, excavators, sand soil screening plants, pumps, steel shipping containers for storage, site sheds and other plant and equipment.

8. [59]

   Whatley Sands ceased mining operations in the mid-1990s, and Lot 1 became simply a storage block for all of Whatley Sands' equipment.

9. [60]

   After Whatley Sands relocated away from Lot 1, Mr Lewis started a company with an old work colleague. Its business was owning and operating drag lines. Mr Lewis said that he took over the lease of Lot 1 and paid $2000 per annum rental. He also leased part of Lot 2.

10. [61]

    Mr Lewis said in par 12 of his 19 May 2016 affidavit that, in about 1998, he commenced a cleanup of Lots 1 and 2 with the acknowledgement and agreement of Mr Stewart and his father to return them to their original condition as a farm, and to clean up and repair damage to the access haul road into Lots 1 and 2 and to the river. Mr Lewis said that he kept Mr Stewart and his father up to date with what he was doing, until Mr Stewart's father died in 2000.

11. [62]

    Mr Lewis claimed that he had a very strong friendship with Mr Stewart, and described the relationship as being one of best mates, particularly in the period 2001 to 2003.

12. [63]

    In par 15 of his 19 May 2016 affidavit, Mr Lewis described the work that he carried out up to 2003 in the following way:

13. [64]

    Mr Lewis said that during the period 1998 to 2003, he offered to Mr Stewart and his father, and later just Mr Stewart, on numerous occasions to buy Lot 1. The response was always that Mr Lewis would be given the first option if it was decided to sell the property.

14. [65]

    In his 28 November 2016 affidavit, Mr Lewis elaborated on his friendship with Mr Stewart. He said that Mr Stewart attended his wedding in 2003. They had many barbecues on Lot 1. This continued until about 2011. Mr Lewis also often went to Mr Stewart's home at Richmond. Mr Lewis would have takeaway with Mr Stewart and his mother. Mr Lewis and Mr Stewart would talk for hours at a time as they shared many of the same interests. Mr Lewis said in par 14: "We enjoyed each other's company and we had many late nights at William's place. The same on Lot 1. William would arrive and I would down tools and we would start on our long conversations of similar sort".

15. [66]

    Mr Lewis said that during these conversations he kept Mr Stewart up to date regarding the work that was being done on Lot 1 and Lot 2.

16. [67]

    As will be seen, it is significant that Mr Lewis’ evidence was to the effect that his relatively close personal relationship with Mr Stewart continued until about 2011. There was no evidence that in any positive way the relationship between Mr Lewis and Mr Stewart foundered. When I deal with Ms Mayhew’s evidence, it will be seen that she said that Mr Stewart suffered a relatively long period of serious ill-health before he suffered the stroke that incapacitated him. The evidence is not precise as to timing. It is broadly likely that, if the relationship between Mr Lewis and Mr Stewart did not continue in its earlier vein, that was in some way connected with Mr Stewart’s declining health. The point of these observations is that the evidence is unclear as to whether Mr Stewart’s direct personal involvement in and approval of the works undertaken by Mr Lewis on Lot 1 continued after the onset of Mr Stewart’s ill-health.

17. [68]

    In par 19 of his 28 November 2016 affidavit, Mr Lewis elaborated in some detail each of the categories of work done on Lot 1 and Lot 2, as set out in par 14 of Mr Lewis' amended statement of claim. This evidence was set out in about nine pages of the affidavit. It will not be convenient to repeat it here. It will be sufficient to say that, although the evidence was related from memory, it was quite detailed in relation to the specific types of work undertaken, and how Mr Lewis carried out the work. For example, in elaboration of the allegation at sub-par (a), Mr Lewis said:

18. [69]

    Mr Lewis gave evidence in a similar vein for all of the other sub-paragraphs of par 14 of his amended statement of claim.

19. [70]

    Mr Lewis’ evidence did not clearly distinguish the remediation and cleanup work that he claims to have done on Lots 1 and 2 before and after he claims Mr Stewart informed him in 2003 (and subsequently repeated) that he would leave Lot 1 to Mr Lewis in his will. Work carried out by Mr Lewis before any representation was made to him concerning the contents of Mr Stewart’s will could not be relied upon to support any estoppel by encouragement case mounted by Mr Lewis. No attempt was made at the hearing (by Mr Lewis or on behalf of Mr Stewart) to separately identify the work done by Mr Lewis after he was first told about the gift to be made to him in Mr Stewart’s will.

20. [71]

    As mentioned above, Mr Lewis described the work that he claims to have done more elaborately in sub-pars (a) to (w) of par 19 of his 28 November 2016 affidavit. In many, but not all, of the sub-paragraphs Mr Lewis set out the timespan over which he claims to have done the work the subject of the particular sub-paragraph. Relevantly he gave a timespan for the following: (a) “1998 till 2014”; (b) “between 2000 until 2009”; (c) “from 2001 to 2010”; (d) “started around April 1998 and was close to being finished in late 2013”; (f) “this took place over the years from 1990 till the latter part of 2013”; (g) “timeframe was sporadic from April 1998 to the end of 2014”; (j) “during 2007, 2008, 2009, 2010, 2011 and 2012”; (l) “on and off till 2006, and then commenced more major earthworks when I brought in road base in about 2010 onwards”; (o) “in 2008” and “during a period from 12 November 2012 until 1 September 2013”; (r) “at least eight times from 2006 to the end of 2013”. (As I understand it, Mr Lewis did not in all cases claim that he worked uniformly over the period on a particular category of work, or that he spent the whole of his available working time doing so. While Mr Lewis claimed that the work that he did was substantial, and beneficial to Lots 1 and 2, the tenor of his evidence was that he did the work when he had the time to do so, and kept Mr Stewart informed about what was happening).

21. [72]

    Mr Stewart did not specifically take issue with the evidence given by Mr Stewart as to the time period over which he claimed to have carried out particular types of work. (Mr Stewart challenged Mr Lewis’ evidence in a different way, which I will consider below). For present purposes, it is sufficient to note that if ultimately the Court is satisfied that Mr Lewis in substance carried out the work claimed by him, a finding is justified that a substantial amount of that work was undertaken after Mr Lewis first learned that Mr Stewart would leave Lot 1 to him in his will in recompense for the work being done.

22. [73]

    It must be noted that, according to Mr Lewis, some of the work that he carried out on the property was done after 2011.

23. [74]

    During this period Mr Lewis was a dragline dredging contractor. The company supplied its services to larger organisations. Mr Lewis said that he used his company's funds and his own funds for all of the works on the farm, and he used his company's equipment and his own equipment. He used crawler cranes, a 22 Ruston Bucyrus long reach cable operated excavator and crane rigged for dragline operation, which he owned at the time. That was how he carried out the earthworks and moved stockpiles of tailings off Lot 2 onto Lot 1, where he created a mound.

24. [75]

    Mr Lewis said:

25. [76]

    Mr Lewis related the circumstances in which he asked from time to time if he could buy Lot 1, and was told that he would be given first option if it was decided to sell the property.

26. [77]

    Mr Lewis then gave the following evidence in par 34 of his 28 November 2016 affidavit:

27. [78]

    In oral evidence in chief, Mr Lewis supplemented this evidence as follows (T 40.31-41.25):

28. [79]

    Mr Lewis' case was that, on the basis of this assurance, he continued to undertake the works described in par 19 of his affidavit up until the end of 2014.

29. [80]

    Again, it must be noted that Mr Lewis said Mr Stewart repeated the assurances that he gave concerning leaving Lot 1 to Mr Lewis “until about 2010”.

30. [81]

    Mr Lewis annexed to his affidavit what he described as "a schedule of costs I have prepared in connection with the above work". He said in par 40 of his affidavit that there was additional work and he had not yet calculated the figures for that work. Objection was made to the form of the schedule, and eventually a redacted version of it (which I understand was the result of consultation between counsel for the parties) was tendered without objection and became Exhibit B.

31. [82]

    The schedule contained a costing for work totalling $775,994.

32. [83]

    It will be sufficient to set out a sample of the entries in the schedule ("RB" means riverbank and "HR" means haul road). The sample entries that have been struck out are entries which were in the original schedule but have been deleted from Exhibit B. The entries that have been struck out have not been received into evidence, but I have included them to give an idea of the content of the document originally prepared by Mr Lewis.:

33. [84]

    As it appeared from responses given by Mr Lewis in cross-examination, the schedule that he prepared was not intended to reflect actual costs incurred by him, but was his attempt to reconstruct what it would have cost to do all of the work if it had been undertaken by external contractors at commercial rates and costs. It became obvious that the exercise undertaken by Mr Lewis was not a very sophisticated or accurate one.

34. [85]

    During the hearing, Mr Lewis was cross-examined at some length. A number of observations should be made to put Mr Lewis’ responses to the questions that he was asked in proper context.

35. [86]

    The following exchange occurred at T 70.8-70.27:

36. [87]

    The question put to Mr Lewis about his having the help of pro bono lawyers confirmed a suspicion that I had about the manner in which Mr Lewis’ case had been prepared. As I have explained above, he started the proceedings himself with documents that he drew. A time came when Mr Lewis had the assistance of a solicitor, and his pleadings and affidavits exhibit the benefit of that assistance. However, there have been aspects of Mr Lewis’ case that appeared to have been largely his own work. A good example is the schedule of the costs of the remediation work that he claims to have done that is annexed to his 28 November 2016 affidavit.

37. [88]

    It appeared, if I may say so with great respect to counsel who appeared for Mr Lewis at the hearing, that to some extent they were required to make do with the materials that they had, and also to make adjustments so that they could present Mr Lewis’ case in the most professional way possible. In many respects, Mr Lewis’ case was not fully developed, and I formed the view, correctly as it now seems from the first question put to Mr Lewis that is extracted above, that these shortcomings did not reflect any lack of diligence on the part of counsel, but rather were beyond correction notwithstanding the honourable course taken by counsel in volunteering their services to Mr Lewis to ensure that he could prosecute his case as fully as the circumstances may permit.

38. [89]

    Many times during his cross-examination, Mr Lewis was forced to admit, which he did in my view readily and candidly, that he had given some evidence in response to a question that he had not already included in detail in his affidavits. In my experience, that is not an uncommon occurrence, particularly in cases where unsophisticated witnesses have largely been responsible for preparing their own affidavits. The reality is that the witness, while remembering the substance of the events that are being related, does not see those events in the analytical way that they are viewed by experienced counsel. The response of such witnesses to detailed questions put by counsel is as if the witness’ memory has been unlocked, and detailed answers are given, often going further than what is strictly responsive to the questions, as the witness proceeds upon the assumption that the Court wants to know what actually happened, without the witness being sensitive to the need for precise responses to be given to specific questions.

39. [90]

    I did not form the impression, in listening to the way that Mr Lewis gave his evidence, that he was making up that evidence wherever he gave detailed responses that were not already included in his affidavits. Rather, the affidavits were in many respects generally stated, and the effect of counsel’s probing questions was to prompt Mr Lewis to recall and to express details that he had not originally thought to include in his affidavits.

40. [91]

    With due respect to Mr Lewis, I formed the opinion when listening to his evidence that his description of his own abilities was accurate and unvarnished. He laboured in the way that he gave his evidence, but that was consistent with his true abilities. I am satisfied that he did his best to give proper and truthful answers to the questions put to him, and readily faced up to a number of events in his life that did not cast him in an attractive light.

41. [92]

    It was put to Mr Lewis based upon a police record dated 20 September 2006, that a complaint had been made against him that he had verbally abused a person who asked him for money (T 52.40). There was some uncertainty about whether Mr Lewis worked for the person or it was the other way round. Mr Lewis did not accept the detail of the facts, and said that he was unaware of the complaint. Mr Lewis accepted that on 6 April 2008 he had been stopped by a highway patrol officer when driving a vehicle that was found to have two different numberplates on the back and on the front (T 71.13). The number plates belonged to different vehicles and had expired. Mr Lewis was driving without a licence. Mr Lewis was fined and did not pay the fines in accordance with their terms as he was bankrupt. He accepted that the use of the number plates was “calculated to deceive” (T 71.16). Mr Lewis was not given the opportunity to explain himself but said that he acted “out of desperation” (T 72.15). Mr Lewis accepted that he did not have a good relationship with the ATO, because when his company was put into liquidation it owed a $60,000 debt for tax (T 78.10). Mr Lewis accepted that he told his insolvency trustee that his drag lines were just scrap (T 78.48). This statement was not shown to be false. Mr Lewis acknowledged that he had access to usable equipment, but claimed that the equipment belonged to his wife (T 83.30). Mr Lewis accepted that in 2007 he was directed by the Hawkesbury City Council to do cleanup work on the property. Mr Lewis acknowledged that in 2012 he was issued by what was described as the Office of Water with a penalty for work done on the land. Mr Lewis claimed that he was fined $750 for not making an application for a permit for works that he carried out (T 86.40). He admitted that at the time of giving evidence he had fines outstanding of $1500 (T 86.48). There was an unexplained problem in February 2014, because of the absence of something called a “Controlled Activity Application”, which apparently led to a fine but the issue was “resolved” (T 87.25). Mr Lewis accepted that he was charged with intimidation and pleaded guilty on 11 April 2014, in relation to events on 2 and 11 April 2013. The following cross-examination occurred on this issue (T 89.10-90.23):

42. [93]

    Mr Lewis accepted that he was found guilty by a magistrate of what was described as a “road rage incident” that occurred on 2 August 2014, in which he punched someone (T 104.50). Mr Lewis was found guilty of assault. Mr Lewis began to explain that he was surrounded by a group of people that stopped him from driving, but was not permitted to complete his explanation.

43. [94]

    All of these matters put Mr Lewis’ character in a bad light, but I do not accept that they discredit him to the extent that the Court should reject the evidence given by Mr Lewis on the basis that he is entirely uncreditworthy.

44. [95]

    The approach that Mr Stewart took to responding to Mr Lewis’s evidence about the amount of the cleanup and remediation work that he did on Lots 1 and 2 was to rely primarily upon the evidence of a registered surveyor, Mr Daniel Fitzhenry, who inspected the properties on 19 August 2016, and prepared a report of his observations and conclusions concerning the work that may have been done on the properties. I will consider this evidence below. It will be seen that Mr Fitzhenry’s evidence was primarily based on a ‘snapshot’ of the properties about 12 months after Ms Mayhew tried to evict Mr Lewis.

45. [96]

    Mr Lewis was cross-examined about some of the photographs contained in Mr Fitzhenry’s report concerning his inspection of Lots 1 and 2 on 19 August 2016 (T 93.1-97.16). The following are the most significant aspects of that evidence:

46. [97]

    When Mr Lewis was cross-examined about the photographs taken by Mr Fitzhenry and the captions that he added to the photographs, Mr Lewis explained the significance of the photographs by elaborating his evidence as to the work that he had done. Many aspects of the further evidence were not included in his affidavits. It does not follow that Mr Lewis was making up his evidence. The evidence in his affidavit was given at a particular level of generality. As I have observed above, his evidence was relatively detailed given that it was prepared at the level of broad descriptions of the types of work that Mr Lewis undertook over a period of about 16 years. It is not surprising that when Mr Lewis was asked to comment on particular photographs taken about 12 months after he was asked to leave the property, he gave detailed responses that he had not included in his affidavits.

47. [98]

    More significantly, Mr Lewis was only cross-examined about the state of the properties on 19 August 2016, and what could reasonably be concluded concerning the work done on them in the period two or three years before the date when the photographs were taken. The Court can infer that if Mr Lewis had not continued to cut down the vegetation, and particularly the privets, for some time before the photographs were taken, then regrowth may have had a significant effect on the appearance of the properties. Mr Lewis was also asked about the presence of deteriorating farm machinery and vehicles on the properties. Mr Lewis said that he moved these types of items and collected them near the shed. Apart from Mr Lewis identifying certain machinery as the property of his son, the question of the ownership of these items was not explored. It is likely that property of this nature left on Lot 2 was owned by Mr Stewart. The court cannot know, but it also cannot decide that the residual presence of an amount of farm machinery and vehicles was inconsistent with Mr Lewis having carried out all of the cleanup and remediation works that he swore that he had done over the years.

48. [99]

    A part of the evidence in Steven Lewis’ affidavit appears to be relevant to this issue. Steven Lewis said:

49. [100]

    While the issue was not explored by either party, this evidence from Steven Lewis suggest that there were parts of Lot 2 and items of machinery and other goods on that lot that reminded Mr Stewart of his father and that he did not want to be disturbed. Given this evidence, I would not conclude on the basis of the evidence in Mr Fitzhenry’s photographs that the mere fact that some structures on Lot 2 had not been rebuilt by Mr Lewis, and some deteriorating items of equipment had been left on that property, is inconsistent with Mr Lewis’s evidence concerning the cleanup and remediation works that he swore that he had undertaken.

50. [101]

    The most significant point, however, is that a reading of pars 5 and 15 of Mr Lewis’19 May 2016 affidavit and par 19 of his 28 November 2016 affidavit paints a picture of Lot 1 and parts of Lot 2 being a dumping ground for the refuse and contamination that followed the end of about 15 years of mining for sand, soil and gravel. The types of refuse and discarded machinery and other items that are described in the evidence is much more extensive than odd bits of deteriorated farming machinery and vehicles depicted in the photographs taken by Mr Fitzhenry.

51. [102]

    I do not consider that the challenge to Mr Lewis’ evidence based upon the contents of the photographs and captions contained in Mr Fitzhenry’s report goes to the heart of Mr Lewis’ evidence concerning the work that he claimed to have done over the years in response to the properties having been used for sand mining and related operations over many years up to the mid-1990s.

52. [103]

    Mr Lewis was also cross-examined on the critical issue of whether Mr Stewart promised to leave Lot 1 to Mr Lewis in his will (T 103.14-103.33):

53. [104]

    Mr Lewis steadfastly adhered to his evidence that in 2003 Mr Stewart told him that he would leave Lot 1 to Mr Lewis in his will, and at later times told Mr Lewis that he had actually done so.

54. [105]

    It is important to the issue of what is the appropriate remedy, if Mr Lewis establishes his case, that he claimed in par 19 of his 19 May 2016 affidavit that, in about mid-2003, he ceased paying rent and began paying land rates. Mr Lewis accepted in cross-examination at T 67.29 that he did not pay the rates in cash. He then said that he effectively paid the rates by means of the work that he did on Lot 2. Mr Lewis’s evidence in this respect was not satisfactory. It may be noted that Mr Lewis was bankrupt between 6 September 2007 and 19 December 2010.

55. [106]

    However, the significance of this aspect of the evidence is that apparently Mr Stewart allowed Mr Lewis to occupy Lot 1 and part of Lot 2 without payment of any rent or license fee from mid-2003. The evidence establishes that, for at least some of that period, Mr Lewis used the property to store his equipment for the purpose of the dragline business conducted by Mr Lewis or his company.

Evidence of Steven Lewis

1. [107]

   Corroboration for Mr Lewis’ evidence on this subject is to be found in the evidence given by Mr Lewis’ brother, Steven. Steven, in his 16 November 2016 affidavit, confirmed the help that he gave to Mr Lewis in relation to the work on Lots 1 and 2.

2. [108]

   Steven Lewis said that he lived in Melbourne between 2001 and 2007. Before he left for Melbourne, the site contained a lot of metal, machinery, old trucks, other plant and equipment, old sheds, tyres, batteries, wiring, rubbish (including years of buried rubbish), debris, overgrowth of weeds and bush and shrubbery. In more recent times, after Steven's return from Melbourne, he saw Mr Lewis and Mr Lewis' workers operating draglines, excavators, lawnmowers, water trucks (to keep the dust down), and other plant and equipment.

3. [109]

   Steven Lewis said that he could recall on various occasions when he and Mr Lewis were at Lot 1, that Mr Stewart would arrive to see what was happening and to chat.

4. [110]

   Steven Lewis gave the following evidence in his 16 November 2016 affidavit:

5. [111]

   Steven Lewis was tested in cross examination on the issue of whether Mr Stewart in fact said that he would leave Lot 1 to Mr Lewis in his will (T 113.44 to 115.19):

6. [112]

   It was not put to Steven Lewis that he had made up his evidence in consultation with Mr Lewis. The Court would ordinarily take into account, however, in considering the weight to be given to Steven’s evidence that he was the plaintiff’s brother. Steven readily accepted that his evidence was intended to assist his brother (T 111.26). However, it may be noted that Steven was taken to a New South Wales Police report dated 4 November 2007 where, following something said by Mr Lewis to his brother on the telephone, Steven rang the police. The following evidence was given (T 112.16 to 112.31):

7. [113]

   This evidence tends to suggest that the relationship between Mr Lewis and his brother, Steven, was not without its troubles.

8. [114]

   Steven Lewis gave his occupation as being a window cleaner. He did not appear to me to be particularly articulate, but on the other hand he gave his evidence in a straightforward way within his abilities. Having listened to him give evidence, I did not discern any reason why the Court should treat him as being anything other than a witness of truth.

Exhibit A

1. [115]

   Mr Lewis prepared a number of exhibits to his 18 September 2017 affidavit (Exhibits KJL-1, 2 and 3) which apparently contained a substantial number of photographs that Mr Lewis believed would corroborate his claims in relation to the cleanup and remediation work that he had done on Lots 1 and 2. Those exhibits were not tendered into evidence. Instead, a selection of the photographs in the exhibits was tendered by Mr Lewis without objection as Exhibit A. The exhibit is described as: “Selection of photographs and other documents from Exhibits KJL-1, 2 and 3… (with parts not to be admitted redacted)…”

2. [116]

   In essence, Mr Lewis had compiled a substantial number of photographs and, by one means or another, added captions to the photographs that represented his understanding of their significance. Mr Stewart objected to the evidence being received in this form. Following discussions between the legal representatives of the parties, parts of the captions were redacted. It was agreed that redacted parts would not be received into evidence. Exhibit A therefore contains a substantial number of photographs (there are 119 pages in the exhibit) with various truncated captions.

3. [117]

   The Court has been left to interpret Exhibit A using its own devices. This is a problematic exercise as the evidence is necessarily episodic, and it would not be safe for the Court to make detailed findings of fact concerning the significance of the evidence without significant further explanation, which is not available.

4. [118]

   I therefore think that the Court must take a conservative view as to what findings should be made using the material in Exhibit A. The following summary relates the broad-scale findings that I am satisfied can be made from a review of the photographs and other documents in the exhibit:

   1. (1)

      Pages 4 and 13 are tax invoices from Green & White Transport Pty Ltd addressed to Mr Lewis over the period 30 September 2012 to 19 December 2014 for truck and excavating equipment hire. On some of the invoices Mr Lewis has handwritten a description of the work done on the properties.

   2. (2)

      Pages 14 and 15 appear to be instructions from government bodies on 19 October 2012 and 19 February 2013 concerning the prohibition of importing landfill onto the properties.

   3. (3)

      Page 16 contains before and after photographs of part of the property showing a substantial amount of deteriorated vehicles and steel structures that have been removed by 2006.

   4. (4)

      Generally speaking (the pages are not always in complete chronological order) pages 17 to 55 show the state of the properties and work done in the period up to the end of 2002, which would justify a finding that a considerable amount of disused equipment and steel had been taken from the properties, and privets and other vegetation had been cut back. I have not focused on these pages, as they relate to times before Mr Stewart is first said to have made the representation concerning his will to Mr Lewis in 2003.

   5. (5)

      The pages from page 56 onward often depict the state of an isolated part of the property at times after 2003, in circumstances where no particular inference can be drawn, except that there remains detritus on parts of the property.

   6. (6)

      However, pages 58-62 and 64-70 depict Mr Lewis operating a dragline in the period 2005 to 2009, that at least establish that Mr Lewis was doing work. There are two photographs on page 70 of a before and after nature that show Mr Lewis working the dragline in 2007 to 2008, and the appearance of the same land in April 2013. It does appear that the surface has been substantially cleaned up. Pages 79, 80, 83 and 84 also show work being done during this period.

   7. (7)

      Page 89-91 and 93-97 show the riverbank in early 2013 consistent with substantial earthworks being done in that area.

   8. (8)

      Page 92 is a Google Earth image of the riverbank haul road. The redactions make the caption difficult to follow, but it does appear from the height of the image that relatively fresh work has been done on the haul road.

   9. (9)

      Pages 103-105, 107-108 depict what Mr Lewis described as the mound on Lot 1. The last two photographs are dated 18 April 2013. He said that the mound was made from material on the property that had to be removed, and that it had utility in that equipment could be moved to the mound in times of flood. There is no doubt that considerable earthworks were being carried out on the property.

5. [119]

   Considering this evidence conservatively, and taken as a whole, it strongly bears out Mr Lewis’ claim that he carried out substantial works, primarily on Lot 1, and on the haul road down to the riverbank, both before and after 2003. It would not be safe for the Court to draw any detailed conclusions concerning the nature and extent of the works, or their utility to Lots 1 and 2. It would be fair to say, however, on an overall basis that as time went by the properties appear to have been generally cleaned up, compared to earlier times.

6. [120]

   Accepting the difficulty in making reliable judgments about the amount of the work done by Mr Lewis from randomly dated photographs, it should be observed that it appears that a substantial amount of work was done after 2011, which changed the appearance of Lot 1 substantially.

Exhibit D

1. [121]

   Exhibit D consists of (a) two aerial photographs showing the general location of Lots 1 and 2 in relation to the Hawkesbury River and surrounding properties; (b) historical satellite photos of Lot 1 at 19/08/1986, 10/10/1994, and 16/03/2002; (c) Google Earth imagery of the properties at 21/7/2002, 17/4/2006, 11/3/2007, 30/6/2009, 31/1/2014, 16/10/2015 and 5/5/2016; and (d) three images supplied by NSW Spatial Services.

2. [122]

   These photographs were not put to Mr Lewis in evidence, so the Court does not have the benefit of a description of what each of the photographs depicts.

3. [123]

   The photographs described above in sub-par (a) only show the general layout of the two lots. It can be said, however, albeit from a substantial height (where a car appears only to be about 1 cm long) that the second of the aerial photographs appears to show Lot 1 as relatively organised and clean, and depicts what I understand to be the haul road down to the river bank, which also appears to be relatively recently worked upon and clean. Obviously, the height at which the photograph was taken is too great to allow anything but an overall impression, and would not show up small items of refuse on the property. Further, the photographs are not dated.

4. [124]

   The photographs described in sub-par (b) have been taken apparently at a lower height than the photographs referred to above, but still too high to identify any detail on the ground. It appears that on both dates there was a substantial amount of sheds, vehicles and other equipment on Lot 1 (more so in 1994 and 1986).

5. [125]

   The Google Earth imagery described in sub-par (c) also is taken high off the ground, so that only a general impression can be formed about the state of the surface and the number of buildings and equipment on Lot 1. The state of the lot does appear to change over time, consistently with work having been done. No fine-scale conclusion can be reached on the basis of the images. The most significant images appear to be those taken on 30/6/2009 and 31/1/2014. A considerable amount of equipment appears to have been removed over that period, and at the end Lot 1 appears to be cleaner and its surface more even. The images taken on 16/10/2015 and 5/5/2016 do not appear to differ greatly from the image taken on 31/1/2014, although it appears that the equipment on the lot is laid out in a more disorganised way, and the amount of vegetation appears to have increased over time.

6. [126]

   Finally, the images supplied by NSW Spatial Services described in sub-par (d) were taken at too great a height to enable the Court to draw any conclusions based upon them.

7. [127]

   The result is that the photographs and images in Exhibit D provide only general support for a broad finding that Lots 1 and 2 tended to become more cleaned up in appearance over time, until the end of 2014, after which the amount of vegetation on the lots appears to have increased.

Evidence of Peggy Lillian Mayhew

1. [128]

   Ms Mayhew gave evidence by way of an affidavit sworn on 7 April 2017. She was not cross-examined. That circumstance may reflect the fact that Ms Mayhew is apparently only able to give limited direct evidence concerning the facts of Mr Lewis’ claim.

2. [129]

   Ms Mayhew said that Mr Stewart has experienced ongoing health issues from in or around 2006 and been hospitalised on a number of occasions. He has suffered from sepsis, acute renal failure and a tumour over that time, which resulted in a number of occasions when he required surgery, and extended periods of recovery. In late 2014, Mr Stewart suffered a stroke. Ms Mayhew said that the stroke has rendered Mr Stewart legally incapable.

3. [130]

   Evidence was given by Ms Mayhew concerning statements that had been made by Mr Stewart, as well as one occasion when she visited the properties with Mr Stewart:

4. [131]

   It is difficult to know what the Court should make of this evidence. It is not clear when Mr Stewart is said to have made the statements attributed to him, or when he and Ms Mayhew visited the property. It is also not clear what state of health Mr Stewart was in, or how this may have affected his thinking at the time.

5. [132]

   For example, if Mr Stewart made a statement of a big pile of demolition material being dumped on Lot 1, good soil having been taken from the riverbank, and a great hole being on Lot 1, any such appearance of the property may have been temporary. I do not understand Mr Stewart’s case to suggest that the present state of Lot 1 is as suggested by Ms Mayhew in par 14 of her affidavit.

6. [133]

   The difficulty in judging the significance of this evidence is increased by the fact that it is Mr Lewis’ case that he expected to inherit Lot 1 and that he had been told by Mr Stewart that he could essentially use the property as his own. It is possible that at a particular time Mr Lewis may have used Lot 1 in some way of which Mr Stewart did not approve. Particular instances of that occurring, assuming that it did, would not undermine the substance of the evidence given by Mr Lewis in support of his case.

7. [134]

   Mr Lewis responded to this evidence in pars 6 to 9 of his affidavit of 18 September 2017. He denied that he dumped demolition material in a pile on Lot 1 or that he took away good soil from the riverbank. He denied that there was a great hole or any hole on Lot 1. He again described the nature of the work that he had done on the two lots. He admitted that there was rubble in the nature of tailings. Mr Lewis gave a relatively lengthy explanation of his perception of the occasion when Ms Mayhew visited the properties with Mr Stewart, which he said occurred on 18 April 2013. He accepted that Mr Stewart did not treat him in a friendly way, and said (par 8): “… The defendant walked away from me without greeting me and ignored me, that is, no eye contact, no handshake and no acknowledgement. The same with Peggy. This was strange to me… I was not sure what to do, I had approached them and was ignored as stated…”

8. [135]

   It is relevant to a consideration of Ms Mayhew’s evidence that the will executed by Mr Stewart on 31 March 2014 was tendered into evidence (Exhibit C). Mr Stewart did not object to the tender, but made the point that it was not established by the tender that the will would be the last will and testament of Mr Stewart at the time of his death.

9. [136]

   It is sufficient to note that, by this will, Mr Stewart left half of his estate to each of Ms Mayhew, and his other sister, Christine Joy Carden, with gifts over if they predeceased him.

10. [137]

    It must therefore be borne in mind that just as Mr Lewis was a self-interested witness, so was Ms Mayhew. That observation should not be taken to be disparaging of Ms Mayhew, but simply records the fact that she has an interest in conflict with that of Mr Lewis.

Evidence of Mr Daniel Fitzhenry, registered surveyor

1. [138]

   As noted above, Mr Stewart relied upon an affidavit sworn by Daniel Fitzhenry, a registered surveyor, on 24 November 2017. That affidavit annexed a report of Mr Fitzhenry’s dated 19 August 2016. Ultimately, following objections to parts of Mr Fitzhenry's report, the affidavit itself was not read. Instead, it became Exhibit 1, tendered by Mr Stewart after parts of the report had, following discussions between the legal representatives of the parties, been redacted to delete parts objected to by Mr Lewis.

2. [139]

   The original report was also tendered, as Exhibit 2, but only for the purpose of putting before the Court the coloured photographs that appeared only in black and white in Exhibit 1.

3. [140]

   Mr Lewis did not seek to cross-examine Mr Fitzhenry on the contents of his report.

4. [141]

   In reality, although Mr Fitzhenry is a professional surveyor, his redacted report was admitted into evidence for the purpose of receiving Mr Fitzhenry's description of parts of Lots 1 and 2, at the time of his inspection on 19 August 2016, together with Mr Fitzhenry's conclusions as to what he thought had happened historically on the land.

5. [142]

   To put Mr Fitzhenry's observations in context, it must be remembered that Mr Stewart’s solicitors wrote a letter to Mr Lewis on 21 August 2015 in which they gave him notice of termination of his use of the property. Mr Lewis responded by lodging his caveat on 16 November 2017, and commencing these proceedings on 4 January 2016.

6. [143]

   While the matter was not considered in any detail in the evidence, it is likely that Mr Lewis reduced the amount of work that he did in relation to the upkeep of Lot 1, after his tenure became uncertain.

7. [144]

   Mr Fitzhenry's report takes the form of a response to aspects of Mr Lewis' statement of claim, a copy of which is annexed to the report. Mr Fitzhenry also annexed 11 photographs of various parts of the land, under which there are references to parts of the statement of claim and a commentary by Mr Fitzhenry.

8. [145]

   Mr Fitzhenry does not appear to have been provided with Mr Lewis' affidavits. The report contains the statement: "Only areas within the competence and knowledge of Registered Surveyor Daniel Stephen Fitzhenry are covered within this Survey Report". It is not clear that all of the observations made by Mr Fitzhenry in the report fall within the expertise of a registered surveyor. Many of his observations consist of opinions concerning facts that are directly material to the allegations in Mr Lewis' statement of claim. Although the report has nonetheless been received into evidence, it will be appropriate for the Court to exercise some caution concerning the weight that it gives to aspects of the report.

9. [146]

   Mr Fitzhenry's report responds so directly to the allegations made in the statement of claim that the only way the significance of the report can be understood is by summarising the allegations made by Mr Lewis and then dealing with Mr Fitzhenry's responses seriatim. (I will therefore begin the analysis of Mr Fitzhenry’s evidence by stating first the paragraph of the statement of claim to which the evidence relates).

10. [147]

    Paragraph 9. When Whatley Sands left Lots 1 and 2 in the mid-1990s, there remained unwanted waste including large quantities of old equipment, pieces of plant and stockpiles of tailings.

11. [148]

    Mr Fitzhenry stated:

12. [149]

    Obviously, Mr Fitzhenry’s observations of what was on the properties on 19 August 2016 can say nothing about what was previously on the properties and has been removed. His evidence that there was no waste mining material on Lot 2 is consistent with Mr Lewis’ case. The fact that there may have been farming equipment on the lots is a different matter, as that equipment may have belonged to Mr Stewart.

13. [150]

    Paragraph 12. Upon Whatley Sands’ departure, Mr Lewis commenced to clean up and did other work to Lot 1 and the part of Lot 2 occupied by the Mr Lewis.

14. [151]

    Mr Fitzhenry said that the majority of Lot 2 was overgrown. The only area of Lot 2 that was not significantly degraded was the area leased to the adjoining neighbours. There was no evidence of any clean up or maintenance operations on the land apart from the areas leased to the neighbours. The part of Lot 1 that was leased to Mr Lewis contained residual dragline equipment and many piles of rubbish.

15. [152]

    Again, Mr Fitzhenry could not give useful evidence about what had been cleaned up or what had been maintained if there was no evidence that he knew the original condition of the properties. If he inspected the properties some 12 months after Mr Lewis had been told to vacate the property, his opinion that there was no evidence of any cleanup or maintenance would carry little weight.

16. [153]

    Paragraph 13(c). The benefit to Mr Stewart included cleaning up the properties from mining waste, complying with Hawkesbury Council orders, and returning the properties to their original conditions.

17. [154]

    Mr Fitzhenry said that the only areas of Lots 1 and 2 that show any indication of mining waste is the fenced area occupied by Mr Lewis. There is no indication on the entire remainder of the farm property of any mining operation having been conducted upon the premises. All of the significant piles of residual equipment on the remainder of the property consist of old farming equipment.

18. [155]

    That evidence, properly considered, is favourable to Mr Lewis’ case, particularly when the evidence in Exhibit A is taken into account (as discussed above). At least at the beginning of the period there was substantial mining waste on the properties. If the waste was not there when Mr Fitzhenry inspected the properties, it was removed by Mr Lewis.

19. [156]

    Mr Fitzhenry then responded to some only of the sub-paragraphs of par 14 of the statement of claim, in which Mr Lewis detailed the work that he had carried out.

20. [157]

    Sub-paragraph (a). Mr Lewis cut up old steel and plant and disposed of it.

21. [158]

    Mr Fitzhenry said that, on the day of inspection, the only cut up steel and mining plant equipment stood within the fenced area on Lot 1 that used to be leased to Mr Lewis.

22. [159]

    Again, evidence that there was little cut up steel and mining plant on the properties is consistent with that material having been already removed by Mr Lewis.

23. [160]

    Sub-paragraph (b). Mr Lewis removed heavy mining waste such as front-end loader tires.

24. [161]

    Mr Fitzhenry said that there were numerous old truck and vehicle bodies, old cars and old farming equipment and old steel around and adjacent to the dilapidated shed and old house on Lot 2. There was no indication or evidence that any of this equipment and been disturbed or removed or cut up and disposed of.

25. [162]

    As I have suggested above, it appears to be necessary to distinguish between mining equipment and the detritus left over from mining, and farming implements and equipment including vehicles. Given the evidence in Exhibit A, Mr Fitzhenry’s observation that the vehicles and farming equipment did not appear to have been disturbed or removed does not exclude the truth of Mr Lewis’ evidence. It is also necessary to take into account Steven Lewis’ evidence concerning what Mr Stewart did not want to be disturbed.

26. [163]

    Mr Fitzhenry did not respond to sub-pars (c) to (f), which related to the removal and disposal of old conveyor belts, truck bodies, old cars, rollers, old plant, old rusted steel, rusted and 44 gallon drums, and the disposal of timber waste.

27. [164]

    Sub-paragraph (g). Removal of old mining waste and disposal of other objects, material and rubbish.

28. [165]

    Mr Fitzhenry said that the only old mining equipment waste was within the fenced area of Lot 1 that used to be leased to Mr Lewis.

29. [166]

    That observation is consistent with Mr Lewis’ case that he removed substantial quantities of old mining equipment waste.

30. [167]

    Sub-paragraph (h). Carry out earthworks, including clearing of sections of Lot 2, clear and level the entire boundary of Lot 2, strip contaminated soil, stockpiling, dig virgin material out of stripped out areas, remove large quantities of virgin soil, stockpile the virgin material, place back stripped off stock, pile contaminated soil including levelling out of soil.

31. [168]

    Mr Fitzhenry said that the only sections of Lot 2 that were cleared, maintained and utilised were areas leased by the adjoining neighbours. Virgin soil had only been removed from the part of Lot 1 leased to Mr Lewis.

32. [169]

    This evidence should be interpreted in the light of the fact that the inspection by Mr Fitzhenry took place about 12 months after Mr Lewis was told to vacate the properties.

33. [170]

    Sub-paragraph (i). Level out tailings on both lots.

34. [171]

    Mr Fitzhenry said that the only evidence of tailings was within the fenced area of Lot 1 leased to Mr Lewis.

35. [172]

    Again, this evidence is consistent with Mr Lewis’ case that he had removed or buried substantial quantities of tailings that had been placed on Lots 1 and 2.

36. [173]

    Sub-paragraph (j). Remove all contaminated soil and tailings moved off Lot 2 onto Lot 1 into a mound on Lot 1.

37. [174]

    Mr Fitzhenry said the only evidence of tailings was within the fenced area of Lot 1 leased to Mr Lewis. There were no indications on the remainder of the property of tailings having been in situ.

38. [175]

    The same observation may be made as was made in relation to the preceding sub-paragraph. As I have recorded above, Exhibit A contains photographs that provide some support for the claim that Mr Lewis constructed a mound on Lot 1.

39. [176]

    Sub-paragraph (k). Repair damage to the access haul road into Lots 1 and 2 and river.

40. [177]

    Mr Fitzhenry said that the roads and tracks on the property were in need of repair and showed no sign of remedial works or maintenance.

41. [178]

    Whether or not the work done by Mr Lewis on the haul road depicted in some of the photographs in Exhibit A improved the structure of the road (which seems to be the case), it clearly appears that substantial works were carried out on the haul road.

42. [179]

    Sub-paragraph (l). Remove old haul road ramp belonging to Lots 1 and 2 and rebuild to the river.

43. [180]

    Mr Fitzhenry said there were no indications of any remedial works to or adjacent to the river banks.

44. [181]

    The same observation may be made as for the preceding sub-paragraph.

45. [182]

    Sub-paragraph (m). Clean up the whole of Lot 2 of old machinery.

46. [183]

    Mr Fitzhenry said that the area that used to be leased to Mr Lewis was strewn with residual mining and dragline equipment along with numerous piles of rubbish. The remainder of the property has large areas of very old farming equipment strewn adjacent to the dilapidated farm shed and the dilapidated farmhouse. Only the areas leased to the neighbours showed any indication of clean up activity.

47. [184]

    To the extent that there was residual mining and dragline equipment on Lot 1, that is consistent with Mr Lewis or his company having owned equipment of that nature for the purpose of conducting a dragline business. Depictions of what appeared to be equipment of that nature on Lot 1 appear clearly from many of the photographs in Exhibits A and D. The existence of very old farming equipment adjacent to the dilapidated farm shed and the dilapidated farmhouse is consistent with the evidence that Mr Stewart did not want those materials to be disturbed.

48. [185]

    Sub-paragraph (n). Do maintenance on old shed and old house situated on Lot 2 and other maintenance.

49. [186]

    Mr Fitzhenry said that the old shed and the old house situated on Lot 2 were extremely dilapidated and there was no evidence of any maintenance on these buildings or on any part of Lot 2 apart from the areas leased by the neighbours.

50. [187]

    Mr Lewis gave relatively detailed evidence on this subject in his cross-examination. I do not understand him ever to have claimed that he had rebuilt the old shed or the old house. They were situated on Lot 2 and were owned by Mr Stewart. Mr Lewis only claimed to have done ongoing work to reduce the overgrowth, and he had stopped doing that sometime before.

51. [188]

    Sub-paragraph (o). Repair riverbank on Lot 1 to prevent flooding occurring to Lots 1 and 2.

52. [189]

    Mr Fitzhenry said there were no indications of any remedial work having been conducted at or adjacent to the river bank.

53. [190]

    I have already considered above the evidence contained in Exhibit A concerning the work done on the riverbank, and the creation of the mound. In any event, given that the works were done over a period starting in about 1998, Mr Fitzhenry’s recent observations would not be conclusive.

54. [191]

    Mr Fitzhenry made no response to sub-pars (p) to (r) being the cleaning up of the riverbank, the dealing with authorities, and the cleaning up of rubbish and mining waste on the Council reserve.

55. [192]

    Sub-paragraph (s). Carrying out security and general maintenance on Lots 1 and 2.

56. [193]

    Mr Fitzhenry said that there was no indication whatsoever of general maintenance and the only areas of the property in clean, tidy and farmed and utilised condition were the areas leased to the neighbours.

57. [194]

    Mr Lewis claimed to have carried out general maintenance over a period of some 16 years, and I do not consider Mr Fitzhenry’s opinion to be a great weight considering that he only inspected the properties about 12 months after Mr Lewis had been instructed to vacate them.

58. [195]

    Sub-paragraph (t). Organising a fencing contractor, fencing materials and a survey of the boundaries of Lot 1 and the northern boundary of Lot 2.

59. [196]

    Mr Fitzhenry said that the only fences in reasonable condition were those containing the area that used to be leased by Mr Lewis.

60. [197]

    I do not consider this statement of opinion to be substantially inconsistent with Mr Lewis’ case.

61. [198]

    Mr Fitzhenry did not respond to the allegation in sub-par (u) that Mr Lewis had to deal with disputes concerning neighbours.

62. [199]

    Sub-paragraph (v). Generally maintaining and improving Lot 1.

63. [200]

    Mr Fitzhenry said that the area leased to Mr Lewis contained residual mining and dragline equipment and significant piles of junk and rubbish.

64. [201]

    That observation is consistent with Mr Lewis having believed that he could use Lot 1 as his own, and the fact that he did store his own and his former company’s mining and dragline equipment on the property.

65. [202]

    Sub-paragraph (w). Destroying privets and dead orange trees to the whole of Lot 2.

66. [203]

    Mr Fitzhenry said that the orange orchard on Lot 2 was in an extremely degraded state and was extensively overgrown. There were numerous privets and dead orange trees within the orchard. There was no indication of any privets or dead orange trees having been removed.

67. [204]

    Mr Lewis responded to this allegation in the extract from his cross-examination that is set out above. The only photographs of privets being removed are at the beginning of Exhibit A, early in the period when Mr Lewis was working on the properties.

68. [205]

    Paragraph 16. An allegation concerning the equipment used by Mr Lewis in carrying out the works.

69. [206]

    Mr Fitzhenry's response was simply to say that there was no evidence to suggest that any fair or reasonable maintenance had been carried out on the property.

70. [207]

    As captions to the photographs included in his report, Mr Fitzhenry made the following comments, which also referred to various sub-paragraphs of par 14 of the statement of claim (the comments overlap):

    1. (1)

       All of the orange orchard is completely overgrown and degraded.

    2. (2)

       There are no signs of any maintenance having been carried out to the orchard for many years.

    3. (3)

       There are numerous dead and dying orange trees.

    4. (4)

       The orchard is infested with weeds and privets.

    5. (5)

       The only areas of the property that are not significantly degraded are the areas leased to the neighbours and part of Lot 1 that used to be leased to Mr Lewis.

    6. (6)

       There was no indication that any old machinery had been cleaned up on Lot 2. Vast amounts of old machinery remains in situ on Lot 2.

    7. (7)

       There is no sign of any maintenance having been carried out on the old house situated on Lot 2. The house is extremely dilapidated.

    8. (8)

       The only area on Lot 2 that is in good order is the area leased to the neighbours.

    9. (9)

       There is no indication of any maintenance whatsoever to the old house on Lot 2.

    10. (10)

        There is no sign whatsoever of any short-term or long-term maintenance having been carried out to the old shed on Lot 2.

    11. (11)

        The land around the old shed and around the old house is covered with old trucks and old cars, rollers and old farm plant and old farm steel items. There is no sign of any of this material having been removed from the property.

    12. (12)

        The fenced area of Lot 1 that was leased to Mr Lewis contains old steel and plant material and junk that is not of a farming nature. The material consists of residual dragline equipment related to dragline operations and not to farming operations. Large quantities of virgin soil have been removed from Lot 1

    13. (13)

        There are numerous old truck and vehicle and car bodies on the property (in a photograph depicting the old house). There is no indication that vehicles or trucks or old cars have been cut up and disposed of. There is no indication that rollers, old plant and old rusted steel has been cut up and disposed of.

    14. (14)

        There was no sign of any repair or maintenance work to any of the roads or tracks on Lot 1 or Lot 2.

    15. (15)

        There was no indication of any maintenance work on the river banks.

    16. (16)

        There was no sign of any old plant or old rusted steel having been cleaned up, cut up or removed from the property (in the context of a photograph of the old shed). The old shed is extremely dilapidated and there is no sign of any maintenance whatsoever, having been carried out on this structure.

71. [208]

    I consider that the responses that I have set out above concerning Mr Fitzhenry’s evidence in response to the paragraphs of Mr Lewis’ statement of claim cover the captions made by Mr Fitzhenry in respect of the photographs that he has attached to his report.

72. [209]

    I find that the process that Mr Fitzhenry has adopted in giving evidence in response to the paragraphs in Mr Lewis’ statement of claim is deficient for a number of reasons. First, as I have noted above, there is no appearance that Mr Fitzhenry was given Mr Lewis’ evidence, so he has responded to allegations rather than the evidence provided to establish the allegations. Secondly, Mr Fitzhenry does not appear to have been provided with the photographs and other documents in Exhibits A and D. While, for the reasons that I have discussed above, there are significant limitations on the utility of the photographs, they do clearly establish that Mr Lewis carried out substantial works on the properties in the period from 1990, or thereabouts. The approach adopted by Mr Fitzhenry depended upon the validity of the conclusions that could be reached in relation to the truth of the allegations in the statement of claim, from a single inspection of the properties on 19 August 2016. It did not help that the inspection took place some 12 months after Mr Lewis was told that he would be required to vacate Lot 1. In fairness to Mr Fitzhenry, he probably did not have instructions that would cause him to think that it may be necessary to distinguish between mining equipment and detritus and vehicles and farming equipment on the land that may have been the property of Mr Stewart or his father and uncle, rather than the leavings of the parties who formerly conducted mining operations on the properties.

73. [210]

    In short, while Mr Fitzhenry’s evidence is capable of establishing refinements as to the precise circumstances of the properties as at 19 August 2016, I do not accept that it logically undermines the weight of the evidence that supports a finding that Mr Lewis substantially carried out the works that he claimed.

The legal nature of Mr Lewis’ claims

1. [211]

   Mr Lewis put his claim on two grounds. The first was that he and Mr Stewart entered into an oral contract in 2003 under which, in return for Mr Lewis agreeing to continue to clean up and remediate Lots 1 and 2, Mr Stewart would leave Lot 1 to Mr Lewis in his will. Mr Lewis claimed that he performed his part of the bargain until he was prevented by Mr Stewart from doing so in October 2015, when Mr Stewart repudiated the contract by failing to execute a will leaving Lot 1 to Mr Lewis, before he ceased to have the capacity to make a will, and by expressing an intention to sell Lot 1. Mr Lewis seeks damages for breach of the contract.

2. [212]

   The second basis of Mr Lewis’s claim was also based upon a promise made by Mr Stewart in 2003 that he would leave Lot 1 to Mr Lewis by will if Mr Lewis continued to clean up and remediate Lots 1 and 2. Mr Lewis claimed that he has an equitable estate or interest in Lot 1, or is entitled to equitable compensation, because as a result of his continuing to clean up and remediate Lots 1 and 2, until Mr Stewart denied him access to the land in 2015, Mr Lewis would suffer detriment, if Mr Stewart were permitted to depart from the promises that he made, or alternatively the assumptions held by Mr Lewis. He put his claim on the basis of estoppel by encouragement.

3. [213]

   In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Handley AJA, with whom Allsop P and Giles JA agreed, set out the following propositions concerning contracts not to revoke a will, or to leave property by will, or a proprietary estoppel by encouragement based upon similar promises:

4. [214]

   It appears to follow that the ultimate effect of a contract to leave particular property by a will, or the consequences of estoppel by encouragement, cannot always be known until after the death of the promisor or the person making the assurance. Events that occur after the death, such as the making of claims by creditors or applications for family provision relief, may affect the manner in which the promise or the assurance is capable of creating an interest or estate in the subject property. To use Handley AJA’s term, the rights that the promisee or the recipient of the assurance is capable of enjoying in the property are contingent on various circumstances. This outcome appears to arise on the basis that, if the promise or assurance is to leave property by will, the promise or assurance can only be expected to take effect subject to extraneous legal principles that affect the operation of wills or grant third parties rights to the property in the estate, notwithstanding the terms of the will.

5. [215]

   Even though any estate or interest in the property the subject of the promise or assurance may be defeasible upon the occurrence of a relevant contingency, it should not follow that the promisee or the person receiving the assurance has no interest in the subject property capable of being protected by equity before the death of the deceased, and the subsequent outworking of whatever events may in the particular circumstances give third parties rights in respect of the property in the estate that may cut across the interest that may otherwise have existed in the subject property.

6. [216]

   The nature of any remedy that equity may give before the death of the promisor or person making the assurance will depend upon the circumstances. If the promisee has rights that equity would recognise and enforce following the death of the promisor and the absence of the occurrence of any of the contingencies referred to by Handley AJA, the promisee should be treated as having a defeasible interest in the subject property. The promisee should not be treated as only having a personal right of action against the promisor. Equity should not, however, grant to the promisee any remedy before the promisee’s interest in the subject property becomes absolute, because of the absence of any likelihood of a relevant contingency occurring, which would have the effect of enforcing in favour of the promisee a non-contingent interest in the subject property. But, if the contingency occurs, and the promisee’s interest in the subject property is defeated, the promisee in appropriate circumstances should have an alternative claim for equitable compensation against the estate of the promisor. Alternatively, if the possibility of a contingency occurring in the future means that the subject property may be sold, equity may recognise an alternative interest of the promisee in the proceeds of sale. Each case will depend upon its own circumstances.

7. [217]

   Thus, even while the promisee’s interest in the subject property is contingent or defeasible, equity may grant a remedy, such as an injunction against disposing of the proceeds of sale of the property, to protect the promisee pending the death of the promisor and the ascertainment of the effect of all subsequent relevant events.

8. [218]

   Handley AJA identified the detriment that is relevant in the making of an estoppel by encouragement enforceable in the following manner:

9. [219]

   Later, Handley AJA dealt concisely but at some length with the principles that govern how the Court should fashion a remedy in cases of proprietary estoppel by encouragement at [53] to [78]. These principles will ultimately be relevant to the present case if Mr Stewart makes out his claim based upon estoppel by encouragement. For the sake of brevity, I have respectfully edited his Honour’s reasons (principally, where particular observations are not germane to the present case) as follows:

10. [220]

    In the present case, there was an assertion made on behalf of Ms Mayhew that it was necessary for her to sell Lots 1 and 2 in order to provide for Mr Stewart’s needs, although there was no evidence on this issue. In particular, there was no evidence about whether Mr Stewart had other assets, or whether the sale of Lot 2 would be sufficient for the purpose of providing for Mr Stewart.

11. [221]

    Handley AJA referred to the significance of the vicissitudes of life that may befall the promisor, after the promise or assurance has been made:

12. [222]

    In so far as the first basis of Mr Lewis’ claim is breach of contract, the decision of Ward J (as her Honour then was) in Dable v Peisley [2009] NSWSC 772 illuminates the obvious proposition that, for any promise to make a will to be enforceable as a contract, the ordinary incidents of the creation of contractual obligations must be established. An offer must be made by one party, which is accepted by the other, whereby consideration is provided by the promisee for the promisor’s promise to make a will in the promisee’s favour. There must be an intention to create a contract, which is a requirement that will often be absent within families or close personal relationships. Alternatively, a unilateral contract may arise where the promisor’s offer to make a will in the promisee’s favour is to be accepted by the promisee acting for the benefit of the promisor in a manner that constitutes both the acceptance of the offer and the provision of the consideration to make the promise binding.

13. [223]

    On this subject, Ward J said:

14. [224]

    In Menczer v Menczer [2009] NSWSC 1466, White J (as his Honour then was) said on this issue:

15. [225]

    Unlike in Dable v Peisley (see [123]), in the present case the subject matter of the alleged promise to leave property by will was unquestionably real property, being Lot 1. Accordingly, ss 23C and 54A of the Conveyancing Act 1919 (NSW) will apply in accordance with their terms to the alleged contract. As there is no suggestion that the contract was in writing, even if it is proved, it will not be enforceable unless Mr Lewis is able to rely upon part performance to avoid the operation of the statute: see Dable v Peisley at [124] to [126].

16. [226]

    In Saliba v Tarmo [2009] NSWSC 581, Nicholas J, in considering whether a proprietary estoppel by encouragement claim had been made out in relation to a promise made before the death of the deceased to leave half of her estate to the plaintiffs, adopted, as have many other judges, the summary of the relevant principles provided by Brereton J, as follows:

17. [227]

    As I noted in Ak-Tankiz v Ak [2014] NSWSC 1044, in Dable v Peisley at [24], Ward J distinguished Saliba v Tarmo without suggesting that Nicholas J’s acceptance of the principles expounded by Brereton J was incorrect, and indeed she set out those principles with approval at [128]. Her Honour’s judgment demonstrates the need for the Court to look closely at the evidence in order to identify with precision the content of the assurance given by the deceased, and to decide whether there was sufficient detrimental reliance on the assurance, such as to make it unconscionable for the deceased, or the deceased’s estate, to depart from the assurance.

18. [228]

    It is also necessary for the Court to bear in mind the need for care in accepting evidence concerning the giving of assurances by the deceased person where the evidence of the claimant cannot be contradicted by the alleged maker of the assurance. Ward J said:

19. [229]

    Although Mr Stewart is still alive, I consider these provisions to be applicable because his absence of legal capacity to conduct his own defence has had the result that he has been totally unable to respond to, or to contradict where appropriate, the evidence tendered in support of Mr Lewis’ case.

Consideration

1. [230]

   I consider that this case is one that is required largely to be decided upon the facts.

2. [231]

   Although I have given Mr Lewis leave to amend his statement of claim to plead a claim based upon a contract between himself and Mr Stewart that Mr Stewart would leave Lot 1 to Mr Lewis if Mr Lewis continued to clean up and remediate Lots 1 and 2, that Mr Lewis is entitled to damages because Mr Stewart has repudiated his obligations under the contract, I reject that claim. I do so principally for the fundamental reason that, in my view, even on an analysis of the evidence given by Mr Lewis and Steven Lewis most favourable to Mr Lewis’ claim, it cannot be concluded that there was a bargain between Mr Lewis and Mr Stewart that was capable of giving rise to contractual obligations. For the Court to be able to find that a contract was entered into between two parties, when it looks at the facts it must find that each party made a promise to the other in return for that other’s promise to the first party, or alternatively, in the case of a unilateral contract, the first party must make a promise to the other, where the offer constituted by that promise must be accepted by the other performing the act required by the first party. In very simple terms there must be a ‘deal’. In my opinion it is quite clear in the present case that there was no such deal. There is no suggestion that Mr Lewis made any promise to Mr Stewart in respect of continuing the cleaning up and the remediation of the properties. There is no suggestion that Mr Stewart said that he would leave Lot 1 to Mr Lewis in his will on the condition that Mr Lewis would continue to clean up and remediate the properties.

3. [232]

   On the facts, no obligation was imposed upon Mr Lewis. As a subsidiary matter, even if it were possible to discern an obligation accepted by Mr Lewis, its content was not defined in any way. The supposed contract between Mr Lewis and Mr Stewart would have been illusory, as there was no definition of what cleanup and remediation works were required of Mr Lewis, so it could not have been known whether or not Mr Lewis had complied with his own obligations.

4. [233]

   As I have found that Mr Lewis and Mr Stewart did not enter into a binding contract, the question of whether Mr Stewart repudiated that contract at the time that he lost legal capacity without having already made a will leaving Lot 1 to Mr Lewis does not arise. In my view, had that question arisen, it would have given rise to difficult practical and theoretical questions.

5. [234]

   One problem would be that, even though Mr Lewis has accepted that the effect of the stroke suffered by Mr Stewart has rendered him legally incapable for the purposes of conducting his own defence, there has been no evidence at all concerning the true nature of Mr Stewart’s disability, whether the disability extends to depriving him of capacity to make a will, and whether or not there is any chance of him regaining that capacity. I would feel a great inhibition about even commencing a consideration of whether Mr Stewart’s conduct could constitute the repudiation of the alleged contract, solely on the basis of an agreement between the parties that he required a tutor and is incapable of conducting his own defence of the present litigation.

6. [235]

   It is likely that the conjunction between the principles that govern when a contract is repudiated by reason of a contracting party becoming incapable of performance, and the principles considered by Handley AJA as discussed above concerning the contingent operation of contracts to make or not to revoke or alter wills, would give rise to acutely difficult problems, if they were required to be resolved in the present case. I suggest rhetorically: even if Mr Stewart’s stroke has had the effect that he is now permanently incapable of making a will with the required term, how can it now be said that he has repudiated the contract by his inaction, while he remains alive, and contingencies could fall in following his death that would in any case have denied the right in Mr Lewis to inherit Lot 1?

7. [236]

   As it is not necessary that these questions be explored, and as the parties have not put any detailed submissions concerning their proper resolution, I will say nothing further on the subject.

8. [237]

   It is also not necessary for the Court to resolve the question whether Mr Lewis has undertaken sufficient acts of part performance so that the contract with Mr Stewart would be enforceable notwithstanding the absence of writing.

9. [238]

   The real question is whether, by his assurances and representations to Mr Lewis to the effect that he would leave Lot 1 to Mr Lewis in his will, or later that he had already done so, Mr Stewart has encouraged Mr Lewis to undertake sufficient works following the initial time the assurance was given in 2003, to make it unconscionable to permit Mr Stewart to depart from his assurances and representations, by reason of the detriment that would cause to Mr Lewis.

10. [239]

    I am firmly satisfied on the balance of probabilities that Mr Stewart did make to Mr Lewis the assurances and representations that Mr Lewis has claimed, substantially in the form and manner alleged, and that in reliance upon those assurances and representations Mr Lewis continued to engage in the cleanup and remediation works the subject of his evidence in these proceedings, from 2003 until some time in about 2014 or 2015, when Mr Lewis was informed that he would be required to vacate Lot 1.

11. [240]

    Although there are many unsatisfactory aspects of Mr Lewis’ evidence, I accept his evidence as being truthful on the fundamental issue of whether or not Mr Stewart made the assurances and representations as claimed.

12. [241]

    I consider Mr Lewis’ evidence in this regard to have been effectively corroborated by the evidence of Steven Lewis, which I am satisfied I should accept.

13. [242]

    Although there is considerable uncertainty at the margins as to the precise amount and nature of the work done by Mr Lewis on the faith of the assurances and the representations, I am satisfied by the evidence considered above that Mr Lewis carried out substantial such works after 2003.

14. [243]

    I am fortified in my conclusions by the evidence of the closeness of the relationship between Mr Lewis and Mr Stewart until well after 2003, which is an issue that was not challenged by Ms Mayhew on behalf of Mr Stewart. On the one hand, such a relationship would explain why Mr Lewis was prepared voluntarily to undertake substantial works for the benefit of Mr Stewart before 2003, but on the other, it would provide a basis for Mr Stewart to promise the making of a provision in his will, which otherwise would have been an improbable way for Mr Stewart to reward Mr Lewis for his efforts.

15. [244]

    Although goodwill towards Mr Stewart (and perhaps some shame for the state of the properties caused by his father’s mining operations) may have initially sustained Mr Lewis’ preparedness to carry out considerable cleanup and remediation works voluntarily, I consider it to be highly probable that the fact that Mr Lewis was prepared to continue to carry out the works for some 10 further years is consistent with Mr Lewis having a belief that he would receive a reward that made the whole effort worthwhile. I consider that it would have been highly improbable that Mr Lewis would have continued with the cleanup and remediation works, in the absence of any other reward, if he had not believed that by one means or another he would receive title to Lot 1.

16. [245]

    It is impossible to know whether, when Mr Stewart made the assurances and representations, in his mind he thought they would be binding and taken seriously by Mr Lewis. However, I am satisfied from the extensive nature of the works, that it was reasonable from Mr Lewis’ perspective to consider the statements made by Mr Stewart to be binding, and that Mr Lewis genuinely did believe that Mr Stewart would honour his assurances.

17. [246]

    There is no evidence of Mr Stewart having immediate family, such as children, that would give rise to such an expectation that Mr Stewart would leave his estate wholly to parties other than Mr Lewis, that should reasonably have caused Mr Lewis to doubt that Mr Stewart genuinely intended to implement his assurances.

18. [247]

    There is no evidence as to the value of Lot 1 at relevant times, most particularly at the times that Mr Stewart initially made the assurances and representations. There is no evidence therefore that the value of Lot 1 is so great in proportion to the value of the works undertaken by Mr Lewis, that if the Court held Mr Stewart, or his estate, to the assurances made, that would exceed what could be justified by the requirements of conscientious conduct and would be unjust to Mr Stewart as the estopped party.

19. [248]

    I therefore find in principle that, by reason of the many encouragements he gave to Mr Lewis, Mr Stewart is estopped from denying that Mr Lewis is entitled to a beneficial interest in Lot 1, which he will ultimately be entitled to enjoy if, upon Mr Stewart’s ultimate death, no contingency occurs that would have the effect of denying Mr Lewis that beneficial interest in Lot 1, on the hypothesis that Mr Stewart had acted in accordance with his assurances and made a will leaving Lot 1 to Mr Lewis.

20. [249]

    However, I am not satisfied that Mr Lewis has established that the remedy required in equity to avoid unconscionable conduct on Mr Stewart’s part extends to full and absolute beneficial ownership of Lot 1, subject to the contingencies that have been discussed above which can affect the entitlement of a person who has the benefit of a contract by another person to make a will in the first person’s favour.

21. [250]

    On Mr Lewis’ own case, he agreed to pay the rates from the time in 2003 when he ceased paying rent, and he did not pay the rates. Mr Lewis has had the benefit of rent-free occupancy of Lot 1 and part of Lot 2 for the whole of that period. In my view, Mr Lewis should be required to give credit to Mr Stewart (or his estate when the time comes) for an appropriate amount in respect of Mr Lewis’ occupation of the property. Whether that amount should be measured by reference to the unpaid rates, or an occupation fee calculated on some other basis, is a matter that I consider remains open. It may also be relevant to have regard to periods during which Mr Lewis conducted a business from the property, as opposed to periods when he did not. These matters remain unclear, in part as a result of the reality of the manner in which the case was conducted, whereby the question of the quantum of any remedy was deferred.

22. [251]

    A much more difficult question arises out of the possibility, which remains exceedingly unclear on the evidence, that by reason of Mr Stewart’s illness, or some other unknown consideration, Mr Lewis continued to perform substantial works on the property after Mr Stewart had ceased to be able to give his immediate approval or acquiescence, and that Mr Lewis has carried out works of which Mr Stewart did not approve, as if Mr Lewis was entitled to the interest in Lot 1 promised to him before he had actually received it by means of the execution of Mr Stewart’s will. A matter not explored in the evidence is whether the work carried out by Mr Lewis improved the value of the property, or not. As Mr Lewis was not entitled to treat the property as his own, and was only entitled to alter the nature of the property with Mr Stewart’s consent, it is possible that some works undertaken by Mr Lewis could have a bearing on the determination of the appropriate remedy to be granted to Mr Lewis, to ensure that the remedy is consistent with equity’s requirement of conscientious conduct on Mr Stewart’s part.

23. [252]

    I have mentioned above that I agreed with counsel for the parties to decide this case upon the basis of written submissions, subject to the right to call for additional submissions if I thought that to be necessary in the absence of the Court having the opportunity to receive oral submissions on behalf of the parties.

24. [253]

    I have come to the conclusion that the finding that I have expressed as to the outcome of the present proceedings in principle should be as far as the Court should go without giving the parties an opportunity to make further submissions concerning the orders that the Court should now make, and any further case management orders that should be made for the further prosecution of these proceedings.

25. [254]

    While it seems to me, given the contingent effect even of estoppels that arise in the context of assurances as to the terms of a party’s will, that the in principle result I have stated above properly describes the nature of the rights that Mr Lewis has established, I do not consider that I have heard full argument on that issue. The difficulty arises from the inherently contingent nature of the rights that may be founded on the existence of the estoppel. For my own part, I would hold that the existence of the contingency does not prevent Mr Lewis having present rights, and probably even proprietary rights, in respect of Lot 1. There must, however, be a need for careful consideration of the true nature of the rights that can exist at this time, and also as to what remedies are available pending the time, if it arises, when Mr Lewis’ interest ceases to be contingent.

26. [255]

    As a separate matter, I am aware that Mr Lewis has said that his caveat has lapsed. I have also been told of a proposal on the part of Ms Mayhew to sell Lots 1 and 2 to be able to provide for the financial needs of Mr Stewart. There was a positive suggestion on the part of Mr Lewis during the hearing that it would be desirable for the properties to be sold and that Mr Lewis’ entitlement, measured in money, should be ascertained after the sale of the properties.

27. [256]

    These subsidiary issues raise questions concerning the operation of the principles that govern contracts to make wills, as well as estoppels that may have an equivalent effect, during the continuation of the life of the promisor.

28. [257]

    I will deliver these reasons for judgment, and fix a time for a further directions hearing, at which the Court can hear from the parties and determine the future course of these proceedings.

29. [258]

    I will also hear from the parties as to whether it is appropriate for the Court to make any costs order at this stage, and if so, what that order should be.