Corbett v Cousins [2008] QDC 6

DISTRICT COURT OF QUEENSLAND CITATION: Corbett v Cousins [2008] QDC 006 PARTIES: Gregory James Corbett (Plaintiff) AND William James Cousins (Defendant) FILE NOS: 6/06 DIVISION: District Court of Queensland, Gympie PROCEEDING: Civil Trial ORIGINATING COURT: Gympie District Court DELIVERED ON: 1st February 2008 DELIVERED AT: Maroochydore HEARING DATE: 28-30 November 2007 Written submissions received from 7.12.2007 to 11.1.2008 JUDGE: Judge J.M. Robertson ORDER: Plaintiff’s claim dismissed CATCHWORDS: Equity: doctrine of part performance, where parties entered into oral agreement for purchase of area of land, where full consideration had been paid and other acts of part performance admitted. Contract: where parties disputed the area of land sold, whether there had been a meeting of minds on a fundamental term, whether any contract found was void for illegality as contravening s8 Land Sales Act 1984. Legislation: Land Act 1994 Land Sales Act 1984 Land Title Act 1994 Property Law Act 1974 Cases Considered: Francis & Ors v NPD Property Development P/L [2004] QCA 343 Project Blue Sky Inc v Australian Broadcasting Authority (1998) CLR 355 COUNSEL: Mr. Reed for the plaintiff Mr. Diehm for the defendant -- 1 of 59 -- 2 SOLICITORS: Robert Downey Lawyers for the plaintiff Butler McDermott Lawyers for the defendant -- 2 of 59 -- 3 Introduction [1] The Plaintiff Gregory Corbett first met the defendant William Cousins in early 2000. At that time, Mr. Cousins and his wife Maureen were the registered proprietors as joint tenants of a number of adjoining parcels of land at Scrubby Creek via Gympie. Mr. and Mrs. Cousins then owned Lots 11, 13 and 14 on RP865216, with a total area of approximately 32 hectares. They had acquired the property from his parents in 1969 and the family had farmed it and other adjoining lots since the 1920’s when his grandfather first settled in the area. [2] Mr. Cousins was born on 10.11.32, so, at the time of trial he was 75 years of age. Mrs. Cousins died on 22.8.07 after a long illness. [3] In May 2000, Mr. Cousins agreed to lease Lots 11 and 13 to Mr. Corbett for the purposes of cattle agistment for 12 months which was extended for various periods until early 2002. All these agreements were oral. [4] On 3.2.2003, Mr. and Mrs. Cousins sold Lots 11 and 13 containing an area of 30.21 hectares to Mr. Corbett for $105,000. He was given immediate vacant possession. The contract was initially for 12 months but settled on or about 14 May 2003 after Mr. Corbett sold a property in Hervey Bay. The Nature of the dispute -- 3 of 59 -- 4 [5] The dispute concerns the terms of what both parties agree was an oral agreement entered into between Mr. Corbett and Mr. Cousins (on behalf of himself and his wife) later in May for the sale of part of Lot 14. Mr. Corbett and Mr. Cousins agree that the sale price was $7,000 which has been paid in full but they disagree as to the method of payment and the area of land agreed to be sold. It is common ground that there was an implied term of the oral agreement that the parties would carry out all necessary steps to reconfigure Lots 13 and 14 in accordance with the agreement, and that Mr. Corbett would pay all necessary survey costs. [6] As there is no written contract, by virtue of s.59 of the Property Law Act 1974 any oral agreement is unenforceable. [7] Mr. Corbett’s claim therefore seeks to invoke the equitable doctrine of part performance. The learned authors of ‘Equity: Doctrines and Remedies’ set out the three steps a plaintiff must establish in order to invoke the so called doctrine. The acts must be acts by the plaintiff “in performance of” the contract, and referable to the alleged contract; and “the (acts) relied upon must have been done upon the faith of the agreement and must have involved on the part of the person doing it, a change of position in relation to the subject matter of the contract of such a character that he would be unfairly prejudiced if the other party were to take advantage of the absence of written evidence”: Meagher, Gummow and Lehanes’s “Equity – Doctrines and Remedies” Fourth Edition, R. Meagher, D. Heydon, M.Leeming; paragraphs 12-180 to 12-210. -- 4 of 59 -- 5 [8] Mr. Cousins concedes that even on his case there are sufficient acts of part performance to invoke the doctrine. Mr. Diehm puts it succinctly in his written submission (at para 10): “…the issue in the case is not whether there was a contract for the sale of land- that is admitted, and always has been. The issue is what were the terms of the contract and most importantly, what was the area of land proposed to be sold.” [9] It is conceded by Mr. Diehm on behalf of Mr. Cousins that Mr. Corbett’s cause of action is enforceable against Mr. Cousins as the now sole registered proprietor of Lot 14. Mr. Cousins says that at the time he conducted the early negotiations with Mr. Corbett leading up to the agreement he did not have his wife’s active authority to so act, however it is conceded now that there was a ratification by Mrs Cousins of whatever contract it was that her husband had made with Mr. Corbett. [10] Irrespective of the Court’s conclusions as to the terms of the oral agreement, Mr. Cousins argues that any contract is void pursuant to section 8(2) of the Land Sales Act 1984 as it applied on 25 May 2003 by reason of the fact that there was no approval of any kind referred to in s.8(2). Mr. Corbett’s case is that s8(2) has no application to the transaction between the plaintiff and the defendant. The Land -- 5 of 59 -- 6 [11] Lot 14 contains an area of 1.475 hectares and the whole of its eastern boundary abuts Scrubby Creek Road. In May 2003 a white fence roughly divided Lot 14 in half in an east west direction starting in the vicinity of an old cream shed near the western boundary, and ending at Scrubby Creek Road on the eastern boundary. The home of Mr. and Mrs Cousins is to the south of that fence, and north was a dairy shed and in the far northern corner a bore. Mr. and Mrs Cousins then had a plantation of mango trees mainly to the south of the fence but there were also a significant number of trees in the north western part of the block north of the fence. Exhibit 17 is an aerial photograph of Lot 14 taken sometime after January 2005 when Mr. Corbett cleared a number of trees from around the dairy shed. He says he did this with Mr. Cousins' consent but that is disputed. The white fence (or as it was called the white post fence) is depicted in Exhibit 4 and its position is roughly marked on Exhibit 17. The position of each party [12] Mr. Corbett’s case is that in a conversation held on 23.5.03 at or near the old dairy shed, he and Mr. Cousins agreed that he would purchase all of the land north of the white fence, (an area of approximately 6000 m 2 ), for $7000. Mr. Corbett says that it was agreed that the purchase price would be payable by instalments over a period of 6 months. -- 6 of 59 -- 7 [13] Mr. Cousins agrees there was an agreement to sell part of Lot 14 for $7000 but he says it was reached on 28.5.03 after a discussion which took place initially on 22.5.03, near the shed. He says that on the 22.5.03, Mr. Corbett approached him and enquired about purchasing the old dairy shed (or machinery shed as it was variously described in the evidence) and that he, Mr. Cousins, then obtained a piece of paper from Mr. Corbett and then stepped out an area of land around the shed which he set down on the piece of paper. He says that he told Mr. Corbett by reference to the piece of paper (Exhibit 34) that this is what he would get for $7000. He says that Mr. Corbett was not interested, but that on the 28 th of May Mr. Corbett approached him near the white fence and gave him $7000 in a roll of notes. The Evidence [14] Mr. Corbett says that around the time he entered into the contract to purchase Lots 11 and 13, in February 2003 he raised with Mr. Cousins the possibility of purchasing a portion of Lot 14 from the northern boundary of Lot 13 back to the white fence as it would allow him access to the existing yards on the property and to level land for the purposes of storing equipment. He says that Mr. Cousins said he would consider it but “I’d have to settle the first sale first” (Transcript at p19, para 55-56). Mr. Cousins told him he could have “full use of the land, full access to the shed, access to the bore if I needed it for stock water”. It was never put to Mr. Cousins that there was this initial discussion in February, although it -- 7 of 59 -- 8 was suggested that he had agreed to allow Mr. Corbett use of that land. which he denied. [15] Ms. Roberts in her evidence does say that she was present in early February, “I would say February, but that’s just a …” (she was cut off by Mr. Reed’s next question), when there was a discussion at the house when Mr. Corbett said “We’ve got to do something about that block Billy. I’ve had problems moving the truck. It’s the only little bit of flat land around the shed”. She asserts that Mr. Cousins then said things which were consistent with the area of land being along the white fence and including the bore. This is of course inconsistent with what Mr. Corbett said initially in February and is, in my view, an example of many acts of reconstruction undertaken by the parties (and to some extent the witnesses) to suit one version or another. Mr. Corbett does not suggest that his partner was present in May when the critical discussions were said to have occurred. [16] Mr. Cousins says that the first mention of any purchase of part of Lot 14 was the 22 nd May. There is no reference in Mr. Corbett’s diary around 3 rd February to any conversation about purchasing extra land, although there is a detailed note on the 31 st January relating to Mr. Corbett’s offer to purchase the larger areas. [17] Mr. Corbett says that between February and May he did in fact move equipment into the shed. He specifically mentioned a tractor, a hilux ute, compressors, a quad bike and hand tools. Mr. Cousins came across from his house when Mr. Corbett was in the shed. In evidence, he places this conversation as occurring about 22 nd , 23rd or 24th of May- he thinks it was -- 8 of 59 -- 9 the 23 rd . He relies on a diary note for that day: “Bill Land 7k 6 mths To White Fence”. The contract for the purchase of Lots 11 and 13 had settled early on the 14 th May. Mr. Corbett gave evidence which was not challenged that Mr. and Mrs Cousins were away at that time and that their daughter Anne attended settlement on their behalf. After a general discussion, Mr. Corbett says he mentioned that the earlier contract had settled and “what were we going to do about this additional land”. [18] His evidence of the conversation (some of which is in the first person) is as follows: Cousins: “How much do you want?” Corbett: “Well back to the white fence” Cousins: “How much” Corbett: “Back to the white fence, about an acre and a half” Cousins: “Yes that’s o.k., but you can’t have the cream shed. That belongs to Russell” Corbett: “That’s not a problem. We’ll run a fence beside it and it’s yours” Cousins: “What am I going to do about water?” Corbett: “Well you can have access to the water for as long as you’re there” Cousins: “What about my mangoes” -- 9 of 59 -- 10 Corbett: “You can have access to the mango trees for as long as you want because I don’t want them. You’ve finished, let me know and I’ll take them out” Cousins: “Well what about power” Corbett says: I told him that was his business. We would take out the power line between the shed pole and his pole which was the first pole inside his side of the white fence, and then he’d have to be responsible for a new power connection. He asked about the cost of power. Corbett: “Whatever power you use, you pay for” (Mr. Cousins) mentioned that if I would supply a power box he’d have his son Russell connect it up to the existing power line so I could have power to the old dairy shed Corbett: “How much money do you want” Cousins: “$10,000” Corbett told him that “I wasn’t interested at that price and he asked me how much I was offering. I told him I could offer him $7000 and I would have to pay him off over 6 months.” [19] Mr. Corbett says he asked Mr. Cousins to sign a contract. Initially, he said (at T28, l.6) that Mr. Cousins told him he was not going to sign a contract or anything until it was paid for. Later (T 28, l. 40-55) he said he wouldn’t sign a contract because he was a man of his word- “I’ll only accept cash”- “he wouldn’t sign a contract because it might affect his small Centrelink pension…” -- 10 of 59 -- 11 Cousins: “You can’t have anything less than 40 acres for a block in rural areas. How are you going to do this?” Corbett: “I’ll just have to put it on Lot 13 and make it bigger. Re-align the boundary.” “I asked him if he’d sign a development application and he said “Yes. I’ll sign it.” He’s a man of his word and he would do as he said he would.” [20] Mr. Corbett says he made the first payment of $1000 on the 30th May 2003. He says that he made entries in his diary of these payments. Copies of the relevant diary entries are Exhibit 6 and the diary itself is Exhibit 23. [21] Mr. Cousins’ recollection of events in May 2003 is quite different. Neither man took any notes, apart from the entries in Mr. Corbett’s diary and Mrs. Cousins also noted events in her diary which is Exhibit 37. He was adamant that the first discussion abut any extra land took place on the 22 nd of May near the machinery shed when Mr. Corbett asked him if he would sell him the shed. Mr. Cousins said “I will think about it” and then suggested a price of $10,000. Corbett responded with “$2000” and Mr. Cousins said “$7000” which Mr. Corbett rejected. Mr. Cousins then says he told Corbett he would show him what he would be getting for that price and Corbett gave him a piece of paper and Mr. Cousins then walked the area he proposed would be included in the shed sale. He then drew a rough map with approximate dimensions on the piece of paper and this document became Exhibit 34. Mr. Cousins says the words “Greg Corbett” were -- 11 of 59 -- 12 written on the piece of paper when it was handed to him. The document appears to be a torn section of a page of an REIQ contract. He says that Mr. Corbett was not interested and he returned to his house with the piece of paper in his shirt. Later that evening he put the piece of paper in his desk where it remained until the dispute about the area of land arose over 2 years later. He drew up a “better” diagram which he included with the piece of paper. This diagram is Exhibit 35. [22] Mr. Cousins says that on the 28 th May he was at the white post (part of the white fence) when Mr. Corbett came up to him and gave him $7000 in cash in a roll of notes and said words to the effect “here is the money for the shed”. Mr. Cousins says that he said “I didn’t think you wanted it” and “do you want a receipt” to which Mr. Corbett replied in the negative. He thinks they then had a discussion about a survey and Mr. Corbett asked him if he knew a surveyor, and Cousins gave him the name of Adrian Naismith who had excised Lot 14 for the house from other land in 1992. Mr. Cousins says he told Corbett that he, Corbett, would have to pay any survey costs. He says there was no discussion then about a written contract but that soon after he told Mr. Corbett “we need to draw up a contract”. He agreed and it was left at that. [23] Mr. Corbett says he made another 5 payments after the first of $1000 on 30.5.03. All payments were in cash and he says he recorded the payments in his diary at the time. He paid $1000 on 26.6.03, 12.7.03, 16.9.03 and 7.10.03 and $2000 on 23.8.03. His partner Lynelle Roberts says she was -- 12 of 59 -- 13 present for the second last payment of $1000 on 16.9.03. Mr. Corbett referred to some initials ‘LR’ in the 2003 diary on that day as indicating she was present. She was not referred to the diary, but says she recalls a number of occasions when she saw Mr. Corbett pay cash to Mr. Cousins but this one she specifically recalls because she was on leave and she checked her work records. Mr. Corbett also says that his brother Barry Wyndham Corbett was present for the 12th July payment, but the brother was not called to give that evidence. [24] Mr. Corbett told me that at the time he was a company director and running a business in Brisbane called “Cash in a Flash” which is a finance company. No bank or other financial records were produced by him to support any of the alleged payments to Mr. Cousins. In cross-examination he said that there were banking records which he had not produced to his solicitors to support some of the payments but the cash he paid Cousins would have been only part of the particular entries. This can be contrasted with his approach to the verbal agreements between the two men prior to the sale of Lots 11 and 13 whereby Mr. Corbett could agist his cattle on Mr. Cousins land in exchange for orally agreed payments. As part of his own case, Mr. Corbett placed in evidence (Exhibit 2) photocopies of cheque butts evidencing payments. [25] In relation to the payments he said he made to Mr. Cousins for the extra land, Mr. Corbett made these in cash and recorded each payment in his diary. Some of the entries have additional associated information. For -- 13 of 59 -- 14 example, the 30 th May entry is “Bill Paid $1000- Extra Land and Bore”. The final payment, which Mr. Corbett says was on the 7th October is not recorded (as are the others) in the diary on that date, rather it is recorded in the planner at the front of the diary beside the 9 th and also in the “notes” section of the foot of the page where Mr. Corbett has written “Final payment Bill Cousins 2/10/03 (Mr. Corbett says this was 7/10/03) $7000 PAID CASH AS REQUIRED FOR EXTRA LAND TO WHITE FENCE- TO BE SURVEYED PAY COST”. [26] Mr. Cousins is adamant that there was only one payment of the full amount $7000 on the 28.5.03. There is an entry in Mrs Cousins diary for that day recording that “Greg paid $7000-shed”. There is another word with a question mark that was not identified in the evidence. Mr. Cousins evidence on this point is supported by his daughter Susan Sachs. She lives in Gympie. On the afternoon of the 28th of May 2003, she arrived at her parents’ home to help her mother in preparations for Mrs Cousins’ 70th birthday which was to take place on 30.5.03. She recalls looking through the window through the mango trees and seeing her father with someone else. He came in about 15 minutes later and said to her words to the effect “Look what I have been given”. He had money and they counted it together and it was $7000. He told her he’d received it from Greg for the sale of the shed. I can infer that Mrs Cousins was present as she records this in her diary. In cross-examination the daughter said that the money was in a roll and her father seemed surprised. He said he did not give Greg a receipt and she advised him to note receipt of it. -- 14 of 59 -- 15 [27] The parties are completely at odds as to the area agreed to be sold. [28] Mr. Corbett says that no sketch was made at the time the agreement was made. Mr. Cousins says he stepped out the area on the first day and produced Exhibit 34 and later Exhibit 35 using a ruler. [29] A strong attack was made upon the authenticity of Exhibit 34 (and Exhibit 35) leading to a submission by Mr. Reed that the document is a recent fabrication. Certainly there is no reference to the sketches in Mrs. Cousins diary however another daughter Coralee Williams gave evidence that she saw 2 sketches one of which had jagged edges at some time after 29th May 2003 when she arrived for her mother’s 70 th birthday. I will deal with this later in my reasons. [30] An important feature of Mr. Corbett’s case focuses on Exhibit 7. His evidence is that he did nothing about organising the survey until the final payment was made on 7.10.03. Mr. Corbett says he called in on the surveying firm of Ahern James Naismith on the 9.10.03 and gave instructions to Mr. Brian Naismith. Mr. Naismith’s evidence and his firm’s file on which he relied was that the first instructions to prepare a boundary change were on 22.8.03. It was not suggested to Mr. Naismith that his file showed any evidence of contact with Mr. Corbett on the 9.10.03. -- 15 of 59 -- 16 [31] Mr. Corbett says that on that day he received development application forms and 2 copies of the plans of the property from Mr. Naismith and he then took those forms out to Mr. and Mrs Cousins on the morning of the 9.10.03. He relies on a note in his diary for that day and a pencil entry on the reminders page opposite that entry. I accept that Mr. Corbett has completed the development application form 1 (Exhibit 8) which is in his handwriting except for the signatures of Mr. and Mrs Cousins and the correction of the “RP” description and the date ‘9.10.03’ which I accept was made by Mr. Naismith but probably at some earlier date after August. Mr. Naismith thought it unlikely that he would have given Mr. Corbett copies of the plans, but that it was possible. [32] Mr. Corbett says he met Mr. and Mrs Cousins in the dining room and completed Exhibit 8 in front of them. He signed and they signed. He says he then showed them the plan “and I’d put a mark on it- it was a pencil mark, from memory- to show the line that Naismith was going to survey off”. Mr. Cousins denies ever seeing such a document. There are a number of lines in pencil on Exhibit 7, both on the plan including Lots 13 and 11 and on the expanded copy of the plan of Lot 14 in the top left of the document. Mr. Corbett has marked in yellow on a copy of the exhibit attached to it, the marks he says he made which the Cousins saw. He says he returned “the forms” to the surveyor on that morning. -- 16 of 59 -- 17 [33] There was a major challenge to the authenticity of this document which led to the calling of Mr. Corbett’s solicitor Mr. Patel. I will deal with this later in my reasons. [34] Mr. Cousins does not recall signing Exhibit 8 but (reluctantly it has to be said) admitted that the signatures are those of him and his wife. It is not suggested that there is any note in Mrs Cousins’ diary at any time relating to the signing of the application. [35] It was forwarded to Council on 1.12.03 by Mr. Naismith together with a proposed plan showing the boundary in the position contended for by Mr. Corbett. [36] A surprising feature of the evidence in this case is the long delay that then occurred despite the Council having approved the reconfiguration with conditions on 1.3.04. Mr. Corbett was visiting the property regularly and he occupied a transportable donga which can be seen near the machinery shed in Exhibit 17. It is also apparent that during this time, Mrs Cousins’ health, which had not been good for sometime deteriorated, and Mr. Cousins, as her sole carer was very distracted by this. [37] Mr. Corbett believed from 23.5.03 that he had purchased the area of land surveyed off by Naismith’s firm and he proceeded to act accordingly. His evidence is that he has had full use of the land since the 23.5.03, and indeed since February 2003. He told me that he has done improvements -- 17 of 59 -- 18 and run cattle in the area. He has constructed a loading ramp, replaced posts in the machinery shed, connected power to the sheds, installed a rainwater tank, slashed the immediate area around the transportable and maintained the grass around it and kept it mowed. He has slashed the total area only once in 3 years because of the drought. He has done work filling land around the front of the shed, and levelling it off. He has used the area around the shed for storing machinery and the rest of it for cattle grazing. He employed Mr. David Wade to do some work on the land and to keep an eye on his cattle while he wasn’t there. He and Mr. Wade installed an electric fence energiser in the bore shed and ran an electric fence along the Scrubby Road boundary with Lot 14 up to the white fence. The energiser in the bore shed is depicted in Exhibit 13. They also constructed barbed wire along the white fence to stop his cattle getting at the mango plantation on the other side of the fence. [38] It is immediately obvious that all of these actions, with the exception of the cattle grazing, the running of an electric wire along the Scrubby Road boundary and the barbed wire line along the white fence, are equally consistent with the agreement being for an area around the machinery shed. Mr. Cousins accepts that from time to time, Mr. Corbett’s cattle were on the disputed part of Lot 14. He says he would sometimes open the gate and let them in. [39] He says that by May 2003, he and his wife had become friends with Mr. Corbett and Mrs Roberts. Mrs Roberts described their relationship as very -- 18 of 59 -- 19 good friends. Mr. Cousins also noted that access to the machinery shed was across the disputed area of land. [40] Mr. Corbett gave evidence about payments for electricity supply and installation of power to the shed. It is the amounts that are disputed not that Mr. Corbett made payments. It is accepted by Mr. Cousins that a payment of $500 was made in August 2005, which Mr. Corbett says is around the time of a dispute between the two men about the bore on Lot 14. Once again, on its own, this evidence does not support either version; it is equivocal because power was to be suppled to the machinery shed. There is no evidence to suggest that Mr. Cousins was using the disputed area of Lot 14 for farming purposes. He still had his mango plantation, part of which was on this land, but it is clear that by 2003 he was retired and that his primary focus was his wife’s deteriorating health. [41] Mr. Corbett gave unchallenged evidence that from May 2003 until September 2005 when the dispute had flared, he used the bore 5 or 6 times to fill his tanks to water his stock on all of his land i.e. including the much larger area of Lots 11 and 13. Mr. Cousins says there is a bore on Lot 13 but it has not been used for 20 years, and there is a small dam. [42] Mr. Corbett says that on the 14.1.05 he was in the donga having lunch. A friend Roger Smith was present. He was there to help Mr. Corbett install some equipment. Mr. Corbett says he made a diary note of a conversation he had at that time with Mr. Cousins. A copy of the diary extract is Exhibit -- 19 of 59 -- 20 15. He says Mr. Cousins approached him in the donga and said “I’m finished with the mangos. You can do what you like. It is too dry. There is no money in them anymore.” Mr. Corbett said he made the entry because he says part of the original agreement there were a number of collateral agreements including that Mr. Cousins would have full access to the mangos north of the white fence. He says that he and Smith knocked over 12-15 trees immediately around the donga and loaded them onto a truck and dumped them on a tip on Lot 11. Mr. Smith supports Mr. Corbett’s recollection but curiously says Mr. Wade was there at least some of the time. He recalls that after Mr. Cousins said he was finished with the mango trees, “Mr. Corbett then brought up the subject of removing a few of the trees that were in the area of the demountable…” and Mr. Cousins said “Go ahead its your land”. He agreed there was no conversation about removing trees in any other part of the land apart from around the demountable. Mr. Cousins disputes this evidence. He says he was not at home when the trees were removed. He says that he discovered 37 trees were missing after he and his wife had been away for a week in April 2004 or 2005. He said he remonstrated with Corbett who replied “I thought you wanted them out”. Mr. Cousins said that earlier he had “jokingly” said to Mr. Corbett that he wished he’d never planted the trees. He denies ever seeing Mr. Smith. He was cross-examined at some length about this evidence particularly by reference to Exhibit 17 the aerial photograph and I will return to this later in these reasons. -- 20 of 59 -- 21 [43] Mr. Cousins said that Mr. Ahern (The Ahern in Ahern James Naismith) had surveyed the land in the 1990’s when Lot 14 was surveyed off for their house block. This is clear from Exhibit 1 which is signed by Mr. Ahern as a licensed surveyor on 11.2.94. No-one says that anyone from the firm actually conducted any field work at the property prior to the application being forwarded to Council in December 2003. I comfortably infer that the plan submitted at that time was prepared on the basis of the existing plan which had been drafted by Mr. Naismith’s firm based on the plan and Mr. Corbett’s instructions. Mr. Naismith’s evidence confirms this. The surveyors appear to have taken a lot of time to advance the registration process after the Council approval in March 2004. [44] It appears that some actual survey work was probably undertaken by employees of Mr Naismith in 2004 and 2005 and the boundary was ultimately pegged as a bend to avoid the cream shed. Mr. Naismith told Corbett that Council would not agree with a new boundary with a bend in it. He did say in his evidence that work was done in 2004 but he also said he had no independent memory of the matter and had to rely on his file for dates and details. [45] He gave evidence about Exhibit 26 which is a copy of a letter dated 18 th August 2005 which relates to the first contact between Mr. Naismith or anyone from his office and Mr. Cousins. Mr. Naismith (after telling me he had no independent recollection of events and needed to refer to the file) gave evidence about a contact he says he had with Mr. Cousins at the -- 21 of 59 -- 22 property on the 18 th August 2005. These questions and answers appear at p. 125T l.15. “Do you have anything on your file that would tell you when Mr Cousins contacted you? – Yes. On the – the 18 th of August 2005. It wasn’t so much of Mr Cousins contacting me as – as to that I was attending the site to clarify where this was at, and – and met purely by coincidence met Mr Cousins at the front of the driveway. Right. And what – what was the discussion that you had with Mr Cousins at that time? – – Basically I was just turning my vehicle around to go back to the site and I – I think – Mr Cousins being on the property inquired basically what I was doing and I explained what it was, and he expressed some concern about the – you know, about the boundary alteration. Yes, about the location of the boundary. [46] The letter, Exhibit 26, (a letter to Mr. Corbett) appears to be the source of his recollection. It is in these terms “Firstly, we apologise for the lengthy delays in completing your instructions, our resources continue to be severely stretched. Following previous discussions with yourself, we did approach Council regarding the proximity of the shed to the proposed boundary. Council’s planning staff advises Council would not be willing to allow any step in the proposed boundary between Lots 13 and 14 around the shed. Council will prefer a bend be placed in the boundary, well clear of the shed. Furthermore, we have recently been contacted by Mr Bill Cousins regarding the proposed action. -- 22 of 59 -- 23 Mr. Cousins is not prepared to allow the proposed boundary in the location we have pegged, preferring it to be offset further north and to be straight from back to front. He further suggested that, to this point, no agreement has been reached with you regarding your intended purchase of part of his land. Please find enclosed a draft copy of SP173652, showing the boundary alteration as we have initially pegged it. We suggest you negotiate with Mr Cousins regarding the development and await your definite advice of where the proposed boundary is intended. We will then place pegs in the agreed location and finalise the plan.” [47] I doubt if Mr. Naismith had a discussion with Mr. Cousins on the 18 th August. The letter is the best record of what occurred. It is also curious that the letter suggests that the firm had been contacted by Mr. Cousins and does not suggest (as Mr. Naismith does) that he met Mr. Cousins purely by coincidence at the front of his house at the driveway. As I have noted, this is the first contact between the surveyor’s firm and the owner of Lot 14, Mr. Cousins since they received instructions from Mr. Corbett probably in August 2003 i.e. 2 years earlier. [48] The letter does however suggest that at that point Mr. Cousins’ concern was with the boundary roughly along the white fence. There is no suggestion that he then raised concerns about the boundary extending to Scrubby Creek Road; and there is no suggestion that he mentioned the boundaries as he then believed them to be. Mr. Cousins recalls (without access to any note) that about a year after he was paid the $7000 he -- 23 of 59 -- 24 noticed surveyors on the road in front of the house. He approached them and asked what they were doing and they told him they were surveying the road boundary. At some time after this, he says that Naismith did come out and he relates a conversation that is at odds with Exhibit 26. [49] What is clear is that by the 31 st August, there was a dispute about the boundary. Mr. Corbett contacted Mr. Naismith after receiving Exhibit 26 and an arrangement was then made for the surveyors to come out to the property on 31 st August to realign the boundary to suit both parties. Mr. Corbett says he rang Cousins on the 30 th August to alert him to the fact that the surveyors would be out the next day. [50] Mr. Corbett says however that a few days before than on the 28th August he says he was in his donga at about 5 o’clock, “when Bill poked his head in the door, and rather aggressively I thought, asked me what the hell I was doing making a mess down near the bore, which astounded me a bit, because up until that stage we’d never had a cross word for the previous 4 to 5 years that we’d known each other” [51] Mr. Corbett knew he was referring to two holes near the bore he’d dug with a dozer about 5 to 6 metres across and .6 to .9 metre deep and filled them up with water for his stock. [52] Mr. Corbett related the conversation he had then with Mr. Cousins (T48, l.30): -- 24 of 59 -- 25 “– he said, ‘What are you doing making a mess on my land’ or ‘our land?’ and I said to him, ‘Are you saying I haven’t paid you?’ and he said, ‘No, I’m not saying that.’ He said, ‘Pat doesn’t want to go ahead with the sale and I’ll give you your money back but it’ll have to be with a cheque.’ And I said, ‘I’ll think about it.’ …Was there a discussion at that time about electricity charges? – Yes. He made the statement that I hadn’t paid him for two years for power. So I asked him as to how much I owed him. He said, ‘$500.’ So I immediately sat down and wrote him out a cheque for $500.” [53] There is a note in his diary to support this recollection. It is obvious that the words “Abusive…4-30-5pm” are written in different ink to the rest of the entry. Curiously, the diary note includes this: “Cash paid $7000 at request of Cousins so as not to effect position with Centrelink in regard to pension–” [54] A copy of the cheque for $500 is in evidence as Exhibit 14. What is immediately obvious is that apparently Mr. Corbett was prepared to use a cheque to pay for the electricity and Mr. Cousins was prepared to accept it yet according to them now neither was prepared to involve cheques in the land sale agreement between them. The cheques would have provided independent evidence of the date or dates and quantum of payments. Mr. Cousins does not know whether the dispute about the bore took place before or after the surveyor’s meeting on 31 st August, but he thought it was probably after it. He says that he got home from the Gympie Muster to find -- 25 of 59 -- 26 the hole dug on Lot 14 near the bore. There is an equivocal entry in Mrs. Cousins’ diary for the 28 th August which seems to say “To…Muster”. He says he “just blew (his) top” and told Mr. Corbett he wasn’t going to sell him the shed. His recollection of the details of the conversation was not good but he recalled Greg saying it was his land which he disputes saying “...we never sold it to you”. [55] I am satisfied that there was a meeting on the land in the vicinity of the white fence and the old cream shed on the 31 st August and that Mr. Corbett, Mr. Arthurs, Mr. Clem Bailey and an unnamed assistant from Mr. Naismith’s firm and Mr. Cousins were present. [56] Mr. Corbett does not mention the other surveyor as being there and he is not mentioned in his diary note which states: “Naismith Survey Mike Arthurs Greg Corbett Bill Cousins Clem Bailey (original survey Asked why so long to come back) Boundary line- the pegges” (sic) [57] Mike Arthurs and his wife were and still are friends of Mr. Corbett and his partner. Mr. Corbett asked him to be present. Mr. Arthurs said Mr. Corbett asked him to be there as an independent observer. Mr. Corbett recalls Mr. Bailey putting one peg near the cream shed and another peg at the -- 26 of 59 -- 27 intersection of Lot 14 on Scrubby Creek Road and another in the bore shed. He recalls asking Bill if he was satisfied and Bill said “yeah, that suits me”. He says there was then a discussion about replacing the white fence. Mr. Arthurs recalls the 2 surveyors and Mr. Corbett and Mr. Cousins meeting at the donga. He recalls the surveyors being at opposite ends of the white fence. He recalled hearing discussions and picking up bits of conversations relating to a kink in the boundary. He recalls Mr. Cousins walking around near the old cream shed with a star picket. He recalls discussion between Cousins and Corbett about reconstructing the white fence. [58] The second surveyor was not called to give evidence. [59] Mr. Clem Bailey gave evidence in the plaintiff’s case. He did not purport to give evidence by reference to any file note and he seemed to be giving evidence from his memory. The difficulties that arise therefore as to his reliability can be demonstrated by the fact that in his evidence he does not mention the presence of his fellow surveyor and he does not recall Mr. Arthurs being present. He is the only witness who says that Mr. Cousins and he walked along the entire southern boundary from near the old cream shed to where it ends at Scrubby Creek Road. He was positive that only two pegs were moved and he accepted in cross-examination that the two pegs that were moved were both in the vicinity of what he described as the “encroaching shed” which I take to mean the old cream shed. Having accepted that, Mr. Bailey was then asked by Mr. Diehm why then was -- 27 of 59 -- 28 there a need to walk the entire length of that boundary when only two pegs that were moved were in the vicinity of the cream shed. He seemed then to suggest that it was something that Mr. Corbett wanted done but Mr. Corbett does not even suggest that Mr. Cousins did walk the entire line. Mr. Bailey says Mr. Cousins was also concerned about servicing his mango trees. Mr. Cousins positively denies walking the entire boundary. He recalls 2 surveyors but did not recall Mr. Bailey as one. He recalls that both Mr. Corbett and Mr. Arthurs were there. He says there was a discussion about the overhanging cream shed and the need to have a straight boundary. He says he thinks he left at some stage because his wife needed him. He said that he always carried his phone in his pocket and kept it on vibrate so that she could contact him at any time. [60] Mr. Corbett says that there was a final discussion between he and Mr. Cousins near the bore on the 27.9.05. The diary entry for this day is written on the opposite page in a different pen to other entries for that day. The diary note is in these terms: “27.9.05 12 Noon Approached by WV Cousins to refund money paid plus costs for cancellation of sale. Reason stated “they” want the Bore Back for Water Ownership. Family stated water worth a fortune. An easement to bore. Options:-supply power line, 3 poles + wire. Plus= Full cost ½ share in Bore” -- 28 of 59 -- 29 [61] He says that after this he contacted his solicitors Robert Downey Lawyers. Curiously there is no reference on that date in the diary to the solicitors but on the 31 August entry there is a note written in pencil (as opposed to pen for the rest of the entry of that day) “after lett (sic) from Downey lawyers”. Mr. Corbett was not cross-examined about this so it takes the issue of his reliability no further. Exhibt 31 is a letter tendered by Mr. Reed in his case for the purpose of discrediting Mr. Cousins’s evidence about Exhibits 34 and 35, and I will deal with that issue later in my reasons. However, as Mr. Diehm points out in his written submission the former solicitors for Mr. Cousins refer in that letter to a letter from Robert Downey Lawyers to Mr. Cousins dated 7.9.05 which contained a copy of Survey Plan 176352. The letter of the 7.9.05 is not in evidence but I comfortably infer that it was written on instructions from Mr. Corbett. The formal plan No. SP173652 was forwarded by Council to Mr. Corbett on 13 October 2005. Mr Corbett ultimately accepted that he had in fact consulted his solicitors for the first time in August 2005 as a result of receiving the letter dated 18.8.05 from Naismith. He says he consulted the solicitor because he was concerned that the survey had not been completed. Mr. Corbett says he approached Mr. Cousins after that in his workshop and asked him to sign the plan. He refused saying we’ll let the lawyers sort it out. [62] Mr Arthur says that a date sometime after the 31 st August, Mr. Cousins spoke to him about doing some renovation work on a house in Gympie. Mr. Arthur is a retired licensed builder. He says that Mr. Cousins picked him up and they went down and looked at the house. He says that Mr. Cousins -- 29 of 59 -- 30 returned him to his residence in Scrubby Creek Road and after dropping him off they had a general discussion about houses and he asked “what did I think about the value of his property that he’d sold to Greg”. He told Mr Arthur that it was about 1 ½ acres. He recounts the conversation thus (T.163, l.18): “ ‘Well, how big is it?’ and he said, ‘Oh, its about and acre and a half.’ And I said, “well, assessing on what I’ve paid’ – ‘cause I paid 317,000 for just over a hundred acres with a house and that, and I said, ‘Look, it’s probably – assessing my value at about $3,000 an acre, if that’s an acre and a half, it should equate to about four and a half thousand plus maybe a bit for the sheds and things that are on it.’ And he said, ‘Oh, well.’ He said- I think I said to him, ‘Why, how much did you sell it for?’ And he said ‘7000.’ And I– I remember I said to him, ‘Well, you did okay then.’ ” [63] Mr. Cousins agrees that he did take Arthur down to look at a house on a number of occasions but denies having any such discussion. Discussion [64] The diversity in the evidence in this case graphically demonstrates the difficulties facing a court in determining what was agreed when parties choose not to set down in some written form the essential terms of a contract between them for the sale of land. -- 30 of 59 -- 31 [65] The plaintiff Mr. Corbett has the onus of satisfying me on the balance of probabilities that the agreement he contends for was made in May 2003 for the purchase of the whole of the land in Lot 14 to the north of the white post fence. In the event that I find that the agreement was in fact for the smaller area, Mr. Corbett submits that I can order specific performance of that agreement. Mr. Diehm argues otherwise. It is necessary for me therefore to deal with all disputed factual issues to determine, if I can, the terms of the agreement with that in mind. The starting point is that both parties agree that there was an agreement, the purchase price was $7000 and it has been paid in full. Apart from these essential aspects of the agreement, there is very little consensus. The land area [66] The only documents said to be produced by either the plaintiff or the defendant in 2003 relating to the area of land to be sold are Exhibits 34 and 35 (the sketches prepared by Mr. Cousins on the 22 nd May) and Exhibit 7 (the plan with pencil markings which Mr. Corbett says he showed to Mr and Mrs. Cousins at the time Exhibit 8, the development application dated 9 October 2003 was signed by them). (a) Exhibit 7. [67] Mr. Diehm mounted a spirited attack on Mr. Corbett’s credibility in relation to the provenance of this document. Mr. Diehm established with Mr. -- 31 of 59 -- 32 Corbett that he was aware that his solicitors had sent a facsimile to the surveyors on the 29 th August 2005 on his behalf in which was raised his concern that Mr. Cousins was alleging that he was not prepared to go through with the sale. As I have noted, he asserted that there were bank records which would support some of the payments although these would be for larger sums and tax records as well but these had not been produced because he was not asked to produce them. He said that he used money he received from his son for the sale of a car for some of the payments but the son was not called. He said he received $5000 from the son (I infer, in cash) and made “possibly two” payments from this money. [68] In relation to Exhibit 7, Mr. Corbett agreed that it “would be a pretty important document regarding the matters in dispute in (the) case.” Mr. Diehm endeavoured to discover when it was that Mr. Corbett first realised that Mr. Cousins was disputing the area of land the subject of the contract. He said he had Exhibit 7 in a folder; he realised it was an important document on this critical aspect of the dispute but only provided it to his solicitors when he saw the amended defence a few weeks before the hearing on 28.11.07. It appeared at this stage of the hearing that Exhibit 7 had only been disclosed as being a “copy of plan with markings on part of plan…” shortly before the hearing date. At first he disputed that he provided a copy of Exhibit 7 to Mr. Naismith, but then he said “I believe I showed it to him before I left his office because I had to show him where the plan was going to be.” There is no suggestion that there was a copy of Exhibit 7 ever on Naismith’s file. -- 32 of 59 -- 33 [69] He believes the set of arrows on Exhibit 7 on Lot 14 in the smaller plan of it in the right hand bottom corner was placed on by Naismith, but there is no evidence to support that belief. On the copy of Exhibit 7 attached to the exhibit, Mr. Corbett has marked in yellow highlighter the marks he put in. As Mr. Diehm submits, this is very confusing as it means that if Mr. Corbett is to be believed there were 2 distinct boundaries drawn by him and shown to the Cousins on the 9.10.03, one (on the top plan) roughly where the boundary was drawn by the surveyors, and another showing a line to the north of the white fence which may even cut through the machinery shed (see Exhibit 25). [70] In any event, it is common ground that Exhibit 7 was disclosed in a further supplementary list of documents provided under cover of a letter from Mr. Corbett’s solicitors dated 22.11.07 (Exhibit 25). Mr Diehm pointed out (reasonably) to Mr. Corbett that he must have realised at least at the time of the delivery of the defence in June 2006 that Mr. Cousins was asserting that he had agreed to sell a much smaller parcel of land because annexed to the Defence was a copy of Exhibit 35. Mr. Corbett appeared to accept this. As to at what location marks on the plan said by Mr. Corbett to have been made by him were actually made, and in whose presence, was the subject of some quite confused evidence at this point of the cross- examination. He had clearly asserted in his evidence in chief that he made these marks in the presence of Mr. and Mrs. Cousins in their dining room -- 33 of 59 -- 34 on the 9 th October. Ultimately, he asserted that he made those lines in Mr. Naismith’s office. At p88 of the transcript this exchange occurs Mr Diehm: “Did you draw both of those lines on the plan at Mr. Naismith’s office?”— Mr. Corbett: “I believe so, yes.” His Honour: “That’s- now I’m totally confused. Didn’t you say you drew both those lines at Mr and Mrs Cousins’ house?” Mr Corbett: “No, in Naismith’s office when I picked up the three documents.” Mr Diehm: “It was your evidence this morning, wasn’t it, that you drew the line on the plan at Mr and Mrs Cousins’ house?” Mr Corbett: “Possibly, I don’t know. But I had it with me at Naismith’s to show him where the white fence was, so he knew what to look for when he went out to survey it off and I’d taken- I took it back out with me when I had the other two forms signed.” [71] Mr. Patel, his solicitor, later gave evidence about when Mr. Corbett first produced Exhibit 7 to him and his diary note (Exhibit 30) seems to confirm that when he received instructions, his client was asserting that he not only drew those lines on Exhibit 7 in the presence of the Cousins on 9.10.03, but that he also explained to both of them that this would be the new boundary. -- 34 of 59 -- 35 [72] Mr. Patel gave evidence which I accept that he did see Exhibit 7 when he first took instructions on disclosure from Mr. Corbett on 22.6.06. That is the day on which he made the diary not (Exhibit 30) which is in fact a copy of 2 “Post-it” notes on which he wrote his client’s instructions about this document. Unfortunately, it was disclosed in the first list of documents as a copy of the registered plan and not surprisingly a copy was not requested. [73] At that time, Mr and Mrs. Cousins were represented by Power & Cartwright. Mr. Boyce who represented Mr. Cousins at trial did not come into the matter until later. It appears from Mr. Patel’s evidence that when his client’s documents were inspected, they were (no doubt for cost reasons) in fact inspected by one of the sons and not a solicitor and they were particularly interested in the diaries. It follows that there can be no adverse inference drawn against Mr. Corbett on the basis of a failure to disclose Exhibit 7 until just before the trial. [74] In re-examination, Mr. Corbett said he thought he provided all his documents at the time of first contact i.e. August 2005. The documents he said, were not well ordered and in an Arch-lever file. It seems unlikely that he would have been required to produce all his documents at that time when there was no real prospect of litigation. He says he consulted the solicitors upon receipt of Mr. Naismith’s letter of the 18 th August. In any event, it matters not given my acceptance of Mr. Patel’s evidence. In cross- examination of Mr. Patel, Mr. Diehm asked him why there was no specific reference in the pleadings to Exhibit 7 i.e. before the disclosure meeting on 22.6.06. Mr. Patel confirmed that he had taken detailed instructions -- 35 of 59 -- 36 concerning the matters raised in the Defence (including Exhibit A) but that he did not receive specific instructions about the document until 22.6.06. I agree with Mr. Diehm that this is a curious feature given the acknowledged importance of Exhibit 7 as being the only document (on the plaintiff’s case) shown to the defendant in 2003 in which the boundary is depicted to show (at least in one of the lines) the land north of the boundary fence. [75] As I have noted, Mr. Naismith’s evidence is that the file was opened in August 2003. This does not sit comfortably with Mr. Corbett’s positive assertions that he did nothing about retaining surveyors until after the last instalment payment on the 7th October 2003. [76] The confusion in his evidence about when and where the lines were drawn by Mr Corbett on Exhibit 7 is an important matter touching upon his reliability. His own evidence about this is confusing and unconvincing. I think that it is more probable than not that he drew the lines on the plan in front of Naismith so that the surveyor would know where the boundary was to be according to his client. I think it is highly unlikely that Mr. Corbett drew these lines on the plan before he went out to see Mr. and Mrs. Cousins, and therefore I reject his evidence that they saw those lines when they were signing the development application. Apart from the inherent confusion in his own evidence about this important issue, there is another feature of the case that supports my finding in this regard. [77] It is common ground that at this time Mr. and Mrs. Cousins and Mr. Corbett and Ms. Roberts were good friends with each other and were in the habit -- 36 of 59 -- 37 of sharing meals and having social contact. Both men assert it was the other that did not want a written contract. Mr. Corbett asserts that Mr. Cousins gave a number of reasons for this including that the receipt of the money might affect his Centrelink pension. Mr. Cousins agreed that he and his wife were in receipt of a pension at the time but denies saying this. It makes no sense to me that he would proffer this as a reason in view of the fact that he and his wife had just received $105,000 on settlement of the sale of Lots 11 and 13, and that what was proposed was the inclusion of a small parcel to (in effect) increase the size of Lot 13. Mr. Cousins alleged that Mr. Corbett said he did not want anything in writing because he didn’t vote and didn’t pay tax. This was not even put to Mr. Corbett and I reject this evidence. At this time these men were friends. They obviously had established some trust between them over the agistment issue and they had completed the sale of Lots 11 ad 13 back in May. To have Mr. and Mrs. Cousins initial Exhibit 7 would not have involved the making of a written contract. It simply defies commonsense that if Mr. Corbett had either drawn the lines in their presence, or shown them to them, he would not have asked hem to initial the plan at the same time they signed the development application, which they did, apparently without any demur. I am comfortably satisfied that it is more probable than not that Mr. Corbett drew in these lines to show Naismith where he Corbett believed the boundary was to be. I am satisfied that Mr. Corbett has later reconstructed what occurred in relation to Exhibit 7 to suit his case at trial. I am also satisfied that this occurred prior to the 9th October 2003. -- 37 of 59 -- 38 [78] Unfortunately, Mr. Naismith’s file does not contain any file note to suggest when, but on his evidence it does appear that some of the preliminary work necessary to produce the plan had been done well prior to that. In cross- examination, Mr. Diehm took Mr. Naismith to a computer printout on his file that sets out time details for work done in pursuance of the instructions he received from Mr Corbett, initially he says, on 22.8.03. His evidence contradicts Mr. Corbett’s. Mr. Naismith’s evidence is supported by the file printout (Exhibit 29) and I prefer it for that reason. Mr. Naismith (or someone other than Mr. Corbett or Mr. Cousins) inserted the date “9.10.03” in Exhibit 8. I am satisfied that, contrary to the evidence of Mr. Corbett, these documents were not give to him on the 9th October and had been completed prior to that date, and probably signed by Mr. and Mrs. Cousins prior to then. It may well have been the day that Mr. Corbett returned the documents from Naismith but there is no record of that in Exhibit 29. (b) Exhibits 34 and 35 [79] The documents which Mr. Cousins says he produced on the 22.5.03 are also the subject of a significant challenge as to their provenance. Indeed Mr. Reed submits that the documents are a recent fabrication, created by the defendant to support his case at a time when litigation was in contemplation or underway. Mr. Reed cross-examined Mr. Cousins about a letter dated 27.2.06 from his previous solicitors to Mr. Patel in which no reference is made to either the sketch or the diagram. Mr. Cousins’ -- 38 of 59 -- 39 response to this was unconvincing. He said initially that he didn’t think he showed these important documents to his lawyer which is unlikely; then he said he could not say when he did so. The letter is Exhibit 31. It is true that the letter makes no mention of Exhibit A to the Defence which was delivered some months later. [80] Throughout the hearing and during Mr. Reed’s cross-examination on this point, another of Mr. Cousins daughters Coralee Williams, was present in court as a spectator, obviously in support of her father. At this point in Mr. Reed’s cross-examination she left the court room and she was then called later to give evidence on this issue. She said that when she appreciated that it was being suggested that her father created that document some time after 22nd May, she recalled seeing a document like Exhibit 34 or 35 at the time of her visit to her parent’s house for her mother’s 70 th birthday in May 2003. She says that on the 29 th May she was collected by her sister Susan Sachs from the airport after travelling from her home in Sydney and she then spent a few days at the house for the birthday. She recalls after lunch on that day that her mother was agitated about her father selling the shed. She recalls her mother was upset about not being consulted. She said her father showed here a piece of paper with a diagram on it with a jagged edge, and a proper sketch. She could not be sure it was Exhibit 34 she saw but she did recall seeing Exhibit 35. In cross-examination she made a number of concessions. She could not recall any talk about how much land was sold or for what price. What is surprising is that Susan Sachs says nothing about seeing the sketch although she saw the $7000 -- 39 of 59 -- 40 in cash soon after her father says he received it on 28th May; and Ms. Williams did not see the money although they were both present at the house at this time when the topic was a source of conflict between the parents. (c) The payment schedule [81] There are a number of reasons why I prefer Mr. Cousins evidence on this issue. It is true, as Mr. Reed submits, there are aspects of his evidence generally that are concerning. Mr. Reed refers to his positive and unshakeable assertion about recalling dates e.g. the 22 nd and 28th May, then his failure to correctly recall later dates such as the encounter with Mr. Naismith in August 2005 and the date of the survey on the 31 st August 2005. For a variety of reasons that I will reveal, I think both men have reconstructed in order to suit their respective versions as to what area was being sold. [82] On the payment issue, there are a number of features of Mr. Corbett’s evidence that I found very unconvincing. It defies commonsense that a company director who runs a finance company would not be able to produce better evidence of instalment payments apart from what he asserts are contemporaneous notes in his 2003 diary. When he was put under pressure by Mr. Diehm on this issue of not producing bank or other financial records he was most unimpressive. He asserts that some of the payments are supported by entries in his financial records as part of cash -- 40 of 59 -- 41 withdrawn in part to pay Mr. Cousins and in part to finance a client, yet none are produced. He initially claimed he was not asked by his solicitors for any relevant records but he later resiled from that obviously unconvincing proposition. He readily produced cheque butts to prove payments to Mr. Cousins for agistment and he produced the details of the $500 cheque for electricity dated 28 August 2005, and yet, in relation to payments he obviously thought should be recorded, he produced no supporting financial records. He says he needed time to raise the money and yet he had just settled the $105,000 contract for the purchase of Lots 11 and 13. His evidence of receiving $5000 in cash from his son for the sale of a car from which he paid probably 2 payments was not supported by any other evidence apart from a diary note. I also agree with Mr. Diehm’s general submission that it is unlikely that a man who runs a finance company called “Cash in a Flash” would not be able to put his hands fairly quickly on $7000. [83] I have already referred to the long delays that impact on people’s memories particularly where the only real evidence about this comes from the parties themselves. Mr. Cousins’ evidence is supported by his daughter Susan Sachs. She was an impressive witness and I accept her evidence that she saw her father with $7000 on the 28.5.03. [84] I have some real concerns about the reliability of Mr. Corbett’s evidence about the diaries. Again, he is a director of a finance company. He says that he only started making a diary in 2002. I have already mentioned -- 41 of 59 -- 42 some features of the diary entries that cause me to doubt Mr. Corbett’s evidence that the entries he relied on were made contemporaneously with events. In this regard, I refer to the positioning of some of the entries e.g. the note “final payment” in the Planner section at the front of the 2003 diary supplemented by a note at the bottom of the page which is set out earlier in these reasons. There is no entry on the actual date in the diary (unlike for other alleged payments) and the entries are in a different pen. This last aspect is a feature of other entries and on its own may mean only that he used different pens for different entries. He and Ms. Roberts say they were together on the 16 September when Mr. Corbett paid $1000 to Mr. and Mrs. Cousins. She purports to have a clear recollection of the occasion from consulting work records. She was working at the time and this was a Tuesday. Mr. Corbett says he made that note at the time and he wrote her initials “LR” to record that she was present. It makes no sense at all if she was there that she did not herself initial the entry to confirm that she was there. I have already mentioned the other entry where Mr. Corbett says his brother was present. The brother is in Brisbane apparently. He was not called to support this entry. [85] On the balance of probabilities, I prefer the evidence of Mr. Cousins that the $7000 was paid in one lump sum. (d) Use and occupation of the Land -- 42 of 59 -- 43 [86] I am satisfied that predominantly the use of the land north of the white fence by Mr. Corbett after February/ May 2003 related to activities in and around the shed. Mr. Cousins did dispute that machinery was moved into the shed after February but I am satisfied that he is mistaken about this. It is probable that Mr. Corbett did use the now disputed area of Lot 14 to graze his cattle and to access the bore on 5 or 6 occasions. Mr. Cousins was not prepared to make too many concessions apart from saying that if the cattle were to be let in, he would open the gate. The photographs of the property show that because of the existence of the mango plantation and, to some extent, the topography of the area, any activity around the machinery shed would not be readily seen from the Cousins’ house. It is clear to me that the two men had a comfortable friendship during the lengthy period that had elapsed between the initial discussions in May 2003 and the visit by Naismith in August 2005. With the passage of time, Mr. Cousins became more and more preoccupied with his wife’s health and, as he was retired, he had no real interest in what was happening on the disputed part of Lot 14. The power supply changes are quite consistent with what both men say was the area of land to be sold and any changes along the disputed eastern boundary with the main road are quite consistent with necessary changes because of deterioration in the poles. Mr. Corbett’s activities on the disputed part of the land might indicate that in his mind he did have exclusive use of this land, but there is nothing to show that these activities (to the extent that Mr. Cousins would have noticed) indicate that Mr. Cousins was of the same mind. -- 43 of 59 -- 44 [87] In this regard, I should mention the incident involving the mango trees said by Mr. Corbett to have occurred on 14.1.05. Mr. Corbett and Mr. Smith say they knocked over 12-15 trees immediately around the donga on that day. Mr. Cousins’ evidence on this issue does not fit with other objective evidence in the case and in particular Exhibit 17, the aerial photograph. Whenever this was taken, it is clear that it is taken after the trees have been removed around the donga. As a simple mathematical exercise, it is not possible to find evidence of the removal of 37 mango trees as Mr. Cousins asserts. What is obvious however is that there is still part of the plantation in the disputed area, and the western boundary of the trees is roughly along the line of the boundary Mr. Cousins says he stepped out on the 22 nd May 2003. If, as I accept, the conversation relating to finishing with the trees was to do with trees around the donga, then Mr Cousins comment “Go ahead its your land” is entirely consistent with what he says was the land to be sold. I am satisfied that Mr. Cousins is mistaken in his recall of this incident and that he has, to some extent, reconstructed. Mr. Corbett says he made a diary note of this conversation because part of the original agreement was that Mr. Cousins would have full access to the trees north of the fence. There are two aspects of that evidence that cause me to doubt that he did make that entry at the time as he said. Firstly, I think it improbable that he would see the need to make a note about a relatively minor issue particularly when there remained quite a lot of trees north of the fence; and secondly because then they still had this friendship based on previous oral arrangements. It does not accord with commonsense that Mr. Corbett would see the need to diary note such an -- 44 of 59 -- 45 incident. I am satisfied that both men still believed (after the long time gap) that what had been sold was what each thought in his own mind was the area. There was however, never any meeting of the minds on this fundamental term of the agreement. (e) The survey visits [88] As I have noted, the best evidence of what was said between Mr. Naismith in his meeting with Mr Cousins at his place in August 2005, is the contents of the letter dated 18 th August 2005. As I have said, I am satisfied that the meeting occurred before that. The pre-billing report (Exhibit 29) contains no evidence of Mr. Naismith actually attending the site on that day. It does however refer to some “Cadastral Survey” work at the office on the 15.8.05 (when he has charged for 15 minutes work) and 18.8.05 (when he has charged for an hours work). It is common ground that they did meet. I prefer the relevant passage of the letter to Mr. Cousins recollection. He does not recall the date and said in evidence that he mentioned his concern about the surveyors surveying on the road. This was never put to Naismith. It is another example of Mr. Cousins reconstructing many years after the event. [89] It does appear from what occurred on 31 st August that Mr. Cousins was concerned that the boundary avoid the old cream shed and this was clearly his focus at the time he spoke to Naismith. -- 45 of 59 -- 46 [90] The reference to “no agreement” having been reached is inconsistent with what Mr. Cousins now says. Without any reliable supportive evidence it is difficult to now say what he meant given that Naismith has no independent recollection. He may have been referring to the absence of a written agreement as Mr. Diehm submits, but there is insufficient evidence for me to so conclude. The passage of time and his preoccupation with his wife’s illness may be factors but this does not reflect well on his reliability. [91] The meeting on the 31 st August, it is submitted, is important because it shows that at that time Mr. Cousins’ actions and words were consistent with an understanding that the boundary extended along the complete length of the white fence. This submission depends on the reliability of Mr. Bailey’s evidence. For the reasons I have exposed I do not accept Mr. Bailey as a reliable witness on this point. I am satisfied on the balance of probabilities that Mr. Cousins did not walk along the whole length of the boundary. Consistently with what had occurred between he and Naismith earlier in the month, the main focus of concern on this date was to avoid the cream shed. It would be an entirely different matter if there was evidence that Mr. Cousins had seen (that day or earlier) a copy of the plan drawn by the surveyors on Mr. Corbett’s instructions but there is no such evidence. [92] There is another feature of this evidence that causes me significant concern particularly as to the reliability of Mr. Corbett’s evidence about the bore incident he said occurred on the 28 th August i.e. only 3 days before. If -- 46 of 59 -- 47 he is to be accepted about this, then there must have been significant tension between the two men about this, and it is simply inconceivable that the dispute over the bore holes would not have been raised in the presence of the surveyors on the 31 st August. Mr. Corbett says that he had retained solicitors after receiving Mr. Naismith’s letter of the 18 th August so he clearly was concerned that Mr. Cousins was asserting that there was no agreement. He says this was the first cross word they’d had in 4-5 years and yet, it is not raised in the site meeting on the 31 st August. Mr. Corbett does say that Bailey put a peg in at the bore but no-one else supports this and I reject this evidence. It is simply inconceivable that 3 days after an aggressive abusive outburst by Mr. Cousins about Mr. Corbett digging a hole near the bore on the disputed area of land; there would be (a) no discussion about it and (b) Mr. Cousins would declare himself satisfied when this had not even been discussed. Mr. Reed submits (at 34(b) of his written submissions dated 7.12.07), that Mr. Cousins purported to recall the exact date of 28.8.05 as the date they had the dispute about the holes at the bore. This submission is simply not borne out by the evidence (T.224, l.45 and T225, l.5). I think it is more probable than not that the dispute over the holes near the bore occurred after the 31 st August. There is an entry in Mrs. Cousins’ diary for the 2nd September which refers in part to “Disagreement with Greg”. This finding necessarily leads to a conclusion that the diary note of that day was not made on that date and has been written in by Mr. Corbett at a later time. I have already noted the curious reference in this entry to the association between the $7000 in cash and Mr. Cousins Centrelink pension. There was no such link made for example -- 47 of 59 -- 48 in the notes to the final payment in October 2003 which appears in the planner section for the 2003 diary. Mr. Corbett was not asked about this however Mr. Cousins denies ever making such a link. Mr. Corbett of course says he wrote out the cheque to Mr. Cousins for $500 on the same occasion as the bore dispute. The cheque certainly bears that date however the diary entry for 28 th August says nothing about any payment for electricity. Mr. Cousins admits (by his pleading) that $500 was paid in August which conflicts with his wife’s diary note of the 2nd September which seems to say “Greg paid $500”. I find that it is more probable than not that the cheque was given to Mr. Cousins after the 31st August, and that the dispute over the bore holes also occurred after that time and before the 7 th September. I find that it is more probable than not that the main focus of the survey visit on the 31 st August was on the white fence in the vicinity of the old cream shed i.e. on that part of the proposed boundary which was common to both versions of the area to be sold. My conclusions therefore do not favour one version over the other. (f) Events after 31 August [93] It is clear that upon receipt of a copy of the survey plan 176352 under cover of a letter from the plaintiff’s solicitors on 7.9.05, Mr. Cousins must then have been aware then that Mr. Corbett was claiming to have purchased all of the land north of the white fence including the bore. Mr. Corbett says there was another face to face meeting with Mr. Cousins (their last) on the 27.9.05. Mr. Cousins disputes that he said anything -- 48 of 59 -- 49 about not going ahead with the sale because his wife or family wouldn’t sell the water. As in much of his evidence, Mr. Cousins seemed confused about some dates but adamant about others. As I have noted, the diary entry which Mr. Corbett relies on to recall this conversation is not in the space for that day, but is written on the facing page in a different ink to the other entries for that date. On its own that is not a reason to doubt his reliability on this point but when taken with the many other features in the diary that cause me concern, and my other concerns about his evidence, I think it is more probable than not that Mr. Corbett has expanded one unpleasant meeting with Mr. Cousins before the solicitors letter of the 7.9.05 into a number of meetings to suit his present version of the terms of the agreement. [94] Finally, there is the evidence of Mr. Arthurs. Mr. Diehm is correct when he submits that on the evidence Mr and Mrs. Arthurs are friends with Mr. Corbett and his partner. Ms. Roberts confirmed that Mr. and Mrs. Arthurs were at the court and in the company of herself and/ or Mr. Corbett for the first 2 days of the case. In view of the obvious animosity that had arisen between Mr. Cousins and Mr. Corbett, by the time of the alleged conversation, it is highly unlikely, in my view, that Mr. Cousins would refer to the details of the agreement to someone like Mr. Arthurs who he hardly knew. Mr. Arthurs’ evidence is not based on any note or other contemporaneous document. I do not accept his evidence as reliable. Conclusion -- 49 of 59 -- 50 [95] In my detailed analysis of the evidence I have referred to features of both mens’ evidence which causes me concern. Clearly, on my analysis of the evidence, Mr. Corbett has fallen well short of satisfying me on the balance of probabilities that there was a meeting of minds in May 2003 that the whole of the land on Lot 14 to the north of the white fence was to be transferred. My concerns about Mr. Cousins reliability do not enable me to find that the agreement was related to the smaller area of land. In my opinion, the evidence and my assessment of it leads me to conclude that there never was a meeting of the minds about this crucial term. Mr. Corbett has acted as if he was purchasing the larger area in his dealings with the surveyor but, on my findings, Mr. Cousins was never shown any document (prior to September 2005) which would have unequivocally alerted him to Mr. Corbett’s position. The long passage of time between the conversation between them in May 2003 and the forwarding of the plan to him in September 2005 may be a factor contributing to the belief in the mind of both of them as to what part of Lot 14 was to be sold. Although it is curious that Susan Sachs did not see Exhibits 34 or 35 in May 2003, I am not persuaded that her sister’s evidence that she did see either or both of those documents should be rejected. The circumstances under which she came to give evidence were unusual and I found her evidence persuasive. I think it is probable that Mr. Cousins always had it in his mind that he was selling the shed and the land around it, and there is nothing on my analysis of the evidence and my findings to satisfy me that he well knew that he had agreed to sell the larger area of land to Mr. Corbett. Both men have -- 50 of 59 -- 51 reconstructed to support their respective assertions that there was a meeting of the minds about the area to be sold in May 2003. [96] It follows that Mr. Corbett’s claim must fail, and there is no basis for me holding that the agreement was as Mr. Cousins contends. Therefore it is not necessary for me to resolve the dispute between Mr. Diehm and Mr. Reed about the orders open on the plaintiff’s pleading. It is necessary for me to resolve the s.8(2) dispute in case my findings on the evidence are overturned and/ or altered. [97] I have not mentioned the evidence of the valuer Mr. Horswood. At the start of the hearing Mr. Reed objected to the evidence on the ground that the expert’s reports had been delivered late and in breach of the rules. The issue is pleaded in the new para 15A to the amended defence. It was agreed that I would rule on his objection at this time. I do not think the evidence took Mr. Cousins’ case any further. It was entirely equivocal. The best evidence of value was the price paid by Mr. Corbett for Lots 11 and 13. I therefore formally overrule the objection. S 8(2) of the Land Sales Act 1984 (LSA) [98] Mr. Diehm and Mr. Reed have agreed as to the version of s8(2) of the Land Sales Act (LSA) that was in force on 23 rd May 2003. It is common ground that the relevant reprint of the Act is reprint No 4D. -- 51 of 59 -- 52 [99] s.8 of the LSA then provided: “8 Restriction on selling (1) A person may sell a proposed allotment of freehold land only if, when the purchaser enters upon the purchase of the allotment- (a) local government unconditional approval of the subdivision application for the land is in force under the Planning Act; or (b) local government approval of the subdivision application for the land, subject to conditions other than conditions requiring the applicant to construct works on the land, is in force under the Planning Act; or (c) the following approvals are in force under the Planning Act- (i) approval of the subdivision application for the land, subject to conditions requiring the applicant to construct works on the land; and (ii) approval of the engineering drawings and specifications for the works mentioned in subparagraph (i).7 Maximum penalty- 200 penalty units or 1 year’s imprisonment… -- 52 of 59 -- 53 (2) An agreement made in contravention of this section is void and any person who had paid money there-under shall be entitled to recover the amount thereof, together with the amount of interest (if any) that has accrued in respect of that amount since the money was so paid, by action as for a debt due and owing to the person by the person to whom the money was paid.” [100] It is common ground that there was no relevant approval in place as required by s8(1). Mr. Diehm submits that any agreement to transfer part of Lot 14 is void because of s8(2). Mr. Reed submits that on a proper construction of the section, it does not apply to this transaction. [101] s6 of the LSA contains a number of relevant definitions: “Proposed allotment” means a single parcel of land, other than a lot within the meaning of this Act, the boundaries of which are shown on a plan of survey registered under the Land Act 1994 or Land Title Act 1994.” (LTA) [102] It follows that a “proposed allotment” is not a “lot” within the meaning of the LSA. s6 of the LSA defines “lot”. It includes “a registered lot and a proposed lot”. “Proposed lot” means (relevantly) “that which will become a registered lot upon: (a) registration of a plan; …”. “Registered lot” means “a lot shown on a plan registered under the Building Units and Group Titles 1980 or South Bank Corporation Act 1989, or a lot included in a community titles scheme under the Body Corporate and Community Management Act 1997.” -- 53 of 59 -- 54 [103] It follows that Mr. Reed correctly submits when he says (at 7 of his 7 December outline): “When the definition of “lot”, “plan”, “proposed lot” and “registered lot” are read together, it appears that a lot within the meaning of the LSA refers to a lot on a plan for building units, group titles or the like and does not include a parcel of freehold land.” [104] The next question is whether what was to be sold here was “a single parcel of land…the boundaries of which are shown on a plan of survey registered under the …Land Titles Act 1994”. As to this, it is relevant to have regard to the purposes of the LSA and to the class or classes of approval (referred to in s8(1)(a)(b) and (c)) that would avoid the application of the penal provision. [105] These approvals all refer to “the subdivision application for the land” and Mr. Reed refers to s.3.7.1 of the IPA in Chapter 3 Part 7 which is headed “Plans of Subdivision”. s.3.7.1 provides that Part 7 applies “to a plan…for the reconfiguration of a lot if, under another Act, the plan requires the approval…of a local government before it can be registered…”. “Reconfiguring a lot” means:- “(a) creating lots by subdividing another lot; or (b) amalgamating two or more lots; or (c) rearranging the boundaries of a lot by registering a plan of subdivision; or -- 54 of 59 -- 55 (d) dividing land into parts by agreement…rendering different parts of a lot immediately available for separate disposition or separate occupation; or (e) creating an easement giving access to a lot from a constructed road.” “Lot” is defined in s.1.3.5 of the IPA as “a lot under the Land Title Act 1994” (LTA) which is in Schedule 2 of the LTA “a separate distinct parcel of land created on:- (a) the registration of a plan of subdivision; or (b) the recording of particulars of an instrument…” “Plan of subdivision” is defined in s49 of the LTA as “A plan of survey providing for one or more of the following:- (a) redefinition of a lot on a resurvey”. Mr Reed then refers to s50 LTA which provides (in (g)) that the plan of subdivision must have been approved by the local government unless the plan of subdivision provides only for, inter alia, “(ii) the redefinition of a lot on a resurvey”. [106] Mr. Reed argues that as this is what occurred here, there was no requirement to obtain local government approval because the proposal fell within this exception, therefore, he submits the development application made by his client was not a “subdivision application” of the type envisaged by s8 of the LSA. Mr. Diehm’s response to this argument is to refer to Exhibit 16 and to point out that as the plan of survey also contained amendments to allocated easements, therefore the plan did not provide -- 55 of 59 -- 56 only for “(ii) the redefinition of a lot on resurvey”. I think the exception contained in s50 of the LTA must be referable back to the definition of “Plan of subdivision” in s49 of the LTA. In other words the exception is not referring to consequential changes as a result of only “the redefinition of a lot on a resurvey”, such as to easements, but rather it is referring to a plan that only provides for the redefinition of a lot on a resurvey and does not include one or more of the consequences set out in s.49 (a), (b) and (c). [107] In my view, the argument can be resolved in Mr. Reed’s clients favour by a much simpler route. I agree with him that when one has regard to the objects of the LSA namely “(a) to facilitate property development in Queensland; and (b) to protect the interests of consumers in relation to property development; and (c) to ensure that the proposed allotments and proposed lots are clearly defined; and (d) to achieve the objects mentioned…without imposing procedural obligations on local governments in addition to their obligations under (the IPA)”; the intuitive response is to say that the LSA does not apply to this transaction. As he says, it is difficult to describe the transaction between the parties as having anything to do with property development. This intuitive response gains support from the analysis of McPherson JA in Francis & Ors v NPD Property Development P/L [2004] QCA 343 at [24] by reference to the second reading debate on the bill which became the LSA -- 56 of 59 -- 57 1984. Not surprisingly, Mr. Diehm concentrates on object (c) but clearly the objects of the Act are to be read cumulatively and not as single and distinct objects. [108] I think the answer lies in the submission made by Mr. Reed at para.18 of his submissions. When one carefully tracks through the meaning of “proposed allotment” it is reasonably clear to me that what was being sold was not “ a single parcel of land…the boundaries of which are shown, on a plan of survey that is to be registered under the …(LTA)”, but rather only part of the existing Lot 14. [109] Mr. Reed further submits that the parties here did not enter into an “agreement” within the meaning of s8(2) LSA. s6 of LSA defines “agreement” as meaning (relevantly): (b) an oral contract of sale under which a sale or purchase is entered upon which is enforceable because of:- …(ii) the common law doctrine of part performance.” He argues that because the agreement here was enforceable by application of the “equitable doctrine of part performance”, the definition of “agreement” should be construed narrowly against a seller who has received full consideration. I agree with Mr. Diehm that as there is no “common law doctrine of part performance” (that is giving the term its literal sense as being separate from equity and statute law); the section should be interpreted in a way consistent with its objects. -- 57 of 59 -- 58 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, it was said ‘However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (56) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’ [110] I agree with Mr. Diehm that the legislature clearly intended that the doctrine of part performance, whatever its source, could not be relied on to circumvent the clear intention that agreements that contravene s8(1) would be void. [111] It is not necessary for me to deal with Mr. Reed’s argument on the existence of a constructive trust. [112] Had I been able to determine that the parties were ad idem as to the terms of an agreement to sell part of Lot 14, I would have held that s8(1) did not apply to the agreement. Final orders -- 58 of 59 -- 59 [113] The plaintiff’s claim is dismissed. I will hear the parties on costs. -- 59 of 59 --