It is, after all, only fair

Catchwords: Equity, constructive trusts, Victorian case Rasmussen applied in NSW in Hurt v. Freeman, common intention constructive trust declared over dispossessed senior woman’s home, traced proceeds of sale, “A promise made is a debt unpaid and the trail has its own stern code” , spec work helps poorer people access justice for unconscionable treatment

There is a public perception of the legal profession being made up of “greedy” lawyers, who advertise for work and create trouble for profit. However, this perception is largely wrong.

When politicians get elected they don’t talk about repealing these laws and having less law, only about making more laws.

We, the public, and our elected legislators have created the new laws, not the legal profession. So if a farmer reads my column in The Land, thinks about it, then asks his or her local solicitor for legal advice, my task is complete.

It is complete even if my comment in rejected. There is no fee for my comment and it’s not for sale. It is not advertising and I ask nothing more.

The access to justice legislative reforms (1993) created the ability of lawyers to do “spec” work (no win, no pay).

Yet some pundits sneer at “spec” work on the grounds that lawyers are being money hungry and advertise it.

However, this remains one of the only ways poorer people can get access to justice in civil (including personal injury) claims, because legal aid does not exist.

The other is through “pro bono” (free) work and barristers and solicitors contribute heavily in this regard. Yet very little thanks are ever received for doing “spec” or pro bono work, even though this is the exact opposite of “greed”.

In fact, most lawyers, including me, try to avoid litigation, not encourage it. The litigated result is never certain, highly costly and satisfaction is never guaranteed.

As a barrister I believe in the right to succession, to freely leave gifts under a will, and to create interests in land by signed writing in favour of those whom one wishes.

That is our system of law. However, there are some cases where people have unjustly promised property and persisted in allowing others to rely on false assumptions or representations and, in fairness, it would be unconscionable to deny the interest created.

My column of January 18, 2001, referred to two Victorian Supreme Courts farming cases (Dyke 1998 and Rasmussen 1995) where the courts held there to be constructive trusts over farming land in favour of farming sons, even though there were no signed written contracts.

The reason for this was that the sons and fathers had acted on the faith of a common intention that the land would go to the sons and that the sons suffered detriment in reliance on these representations.

The courts intervened, because it would have been unconscionable to deny the sons’ interests in the land, even though there was nothing in writing.

These are not cases of a “no-good son” robbing “the real builders”.

When I wrote that column, I commented that these two cases had not been considered and applied in NSW and that I could see no reason why the principle of a common intention constructive trust in this context could not be so applied in NSW.

In fact, just recently on April 4, Justice Santow considered and applied the Rasmussen farming case in the NSW Supreme Court (Hurt v Freeman 2002 NSWSC 264, unreported).

His Honour declared a common intention constructive trust over the proceeds of the sale of a suburban home of a dispossessed elderly woman, now deceased.

The home had since been sold and the plaintiff was able to trace those monies through the imposed constructive trust to other property and investments. The injustice of black letter law was righted and the aggrieved widow’s estate compensated by the use of this principle.

In farming conflicts, on the one hand you could have manipulation of black letter law by people with power (money, property and ready access to legal services) – their preference being to ignore developing law and have a good session of lawyer bashing now and then.

On the other hand, you could have aggrieved persons who have suffered and had their genuine rights abused through deception and lies, and yet they might not even know about it.

Their preference is for knowledge, truth and the balance of justice.

The comment in my column can help both sides. It may forewarn some farmers and their families, because ignorance of the law is no excuse.

It can forewarn others so that the passing on of the farm is not tainted by deception and does not come unstuck later. The aim of my column is to pass on knowledge as a trouble-saver, not a trouble-maker.

So I am very sorry to hear there are alleged farming families suffering as a result of my column.

If this is so, it is not my objective. However, if a person is wronged by, or suffers from hollow promises, I uphold their right to seek resolution of, or compensation for, a bona fide claim.

It’s only fair. “A promise made is a debt unpaid and the trail has its own stern code” (from The Cremation of Sam McGee by R.W. Service, 1907).

Jonathan de Vere Tyndall

Article updated 7 February 2015, originally published in The Land on 2 May 2002

Addendum: An unnamed land owner farmer complained to The Land management about the author’s column. He criticised the author’s articles about poor disinherited dependents trying to obtain justice and being successful in Court against well drafted wills. He said the articles were causing suffering to land owners and that the author was a greedy trouble maker. The column was in fact free when one pourchased a copy of the newspaper. The author was given one opportunity of reply by the newspaper in his “Bush Barrister Column”. That reply was this article. No further column articles were ever published in The Land paper.

The author has received many calls over the years from disinherited beneficiaries or those excluded from wills. They were all very grateful and have openly thanked the author for his legal comment in these articles. Some said that without that free help, they would never have known to come forward to seek out other lawyers. Those happy calls to the author brought their own reward.

Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.