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nsw_caselaw:5b6138ebe4b0b9ab4020e477:67 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 88. It appeared, if I may say so with great respect to counsel who appeared for Mr Lewis at the hearing, that to some extent they were required to make do with the materials that they had, and also to make adjustments so that they could present Mr Lewis’ case in the most professional way possible. In many respects, Mr Lewis’ case was not fully developed, and I formed the view, correctly as it now seems from the first question put to Mr Lewis that is extracted above, that these shortcomings did not reflect any lack of diligence on the part of counsel, but rather were beyond correction notwithstanding the honourable course taken by counsel in volunteering their services to Mr Lewis to ensure that he could prosecute his case as fully as the circumstances may permit. | 67 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:68 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 89. Many times during his cross-examination, Mr Lewis was forced to admit, which he did in my view readily and candidly, that he had given some evidence in response to a question that he had not already included in detail in his affidavits. In my experience, that is not an uncommon occurrence, particularly in cases where unsophisticated witnesses have largely been responsible for preparing their own affidavits. The reality is that the witness, while remembering the substance of the events that are being related, does not see those events in the analytical way that they are viewed by experienced counsel. The response of such witnesses to detailed questions put by counsel is as if the witness’ memory has been unlocked, and detailed answers are given, often going further than what is strictly responsive to the questions, as the witness proceeds upon the assumption that the Court wants to know what actually happened, without the witness being sensitive to the need for precise responses to be given to specific | 68 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:69 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | questions. | 69 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:70 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 90. I did not form the impression, in listening to the way that Mr Lewis gave his evidence, that he was making up that evidence wherever he gave detailed responses that were not already included in his affidavits. Rather, the affidavits were in many respects generally stated, and the effect of counsel’s probing questions was to prompt Mr Lewis to recall and to express details that he had not originally thought to include in his affidavits.
91. With due respect to Mr Lewis, I formed the opinion when listening to his evidence that his description of his own abilities was accurate and unvarnished. He laboured in the way that he gave his evidence, but that was consistent with his true abilities. I am satisfied that he did his best to give proper and truthful answers to the questions put to him, and readily faced up to a number of events in his life that did not cast him in an attractive light. | 70 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:71 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 92. It was put to Mr Lewis based upon a police record dated 20 September 2006, that a complaint had been made against him that he had verbally abused a person who asked him for money (T 52.40). There was some uncertainty about whether Mr Lewis worked for the person or it was the other way round. Mr Lewis did not accept the detail of the facts, and said that he was unaware of the complaint. Mr Lewis accepted that on 6 April 2008 he had been stopped by a highway patrol officer when driving a vehicle that was found to have two different numberplates on the back and on the front (T 71.13). The number plates belonged to different vehicles and had expired. Mr Lewis was driving without a licence. Mr Lewis was fined and did not pay the fines in accordance with their terms as he was bankrupt. He accepted that the use of the number plates was “calculated to deceive” (T 71.16). Mr Lewis was not given the opportunity to explain himself but said that he acted “out of desperation” (T 72.15). Mr Lewis accepted that he did | 71 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:72 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | not have a good relationship with the ATO, because when his company was put into liquidation it owed a $60,000 debt for tax (T 78.10). Mr Lewis accepted that he told his insolvency trustee that his drag lines were just scrap (T 78.48). This statement was not shown to be false. Mr Lewis acknowledged that he had access to usable equipment, but claimed that the equipment belonged to his wife (T 83.30). Mr Lewis accepted that in 2007 he was directed by the Hawkesbury City Council to do cleanup work on the property. Mr Lewis acknowledged that in 2012 he was issued by what was described as the Office of Water with a penalty for work done on the land. Mr Lewis claimed that he was fined $750 for not making an application for a permit for works that he carried out (T 86.40). He admitted that at the time of giving evidence he had fines outstanding of $1500 (T 86.48). There was an unexplained problem in February 2014, because of the absence of something called a “Controlled Activity Application”, which apparently led | 72 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:73 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | to a fine but the issue was “resolved” (T 87.25). Mr Lewis accepted that he was charged with intimidation and pleaded guilty on 11 April 2014, in relation to events on 2 and 11 April 2013. The following cross-examination occurred on this issue (T 89.10-90.23): | 73 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:74 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. Who is Gary Collins?
A. Gary Collins was, if he is still not, he was the council ranger that I’d been dealing with for close to a decade down on the farm. Hawkesbury city council ranger.
Q. He’s the person that you were charged with stalking and intimidating, isn’t it?
A. I never stalked Gary Collins.
Q. That’s not the question, Mr Lewis. He’s the person that you were charged with stalking and intimidating, isn’t he?
A. I don’t’ believe that’s right, madam. I was charged with intimidation, not stalking.
Q. If you go to folder 1 page 240, in the middle of the page you will see an entry there for a court date. When’s the local court? 11 April 2014. Offence date, 11 April 2013 and 2 April 2013. Stalk, intimidate, intend fear of physical harm et cetera. Correct?
A. Does that mean there’s two dates there? There was only one date that I had an argument with him. Does that mean two dates because there’s two dates there? | 74 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:75 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. There’s two dates there.
A. I’m not aware of the 2nd of the 4th 2013. I am aware and yes I had an argument on the phone with Gary Collins and it became quite heated from what he said to me and yes, I was charged and convicted and pleaded guilty to it. From memory I was put on a 12 month bond. I yelled at Gary Collins on the phone because he called me a liar over the office of water.
Q. Over sorry?
A. The office of water. He claimed that I never had any paperwork and I had no permission to do what I was doing or instructions, like there was no instructions by the office of water because they’d contacted the Penrith office that had absolutely nothing to do with it. It was Queanbeyan and I got heated and yes, I’m ashamed of what I done. It was wrong what I done. I snapped and I yelled and yelled at him and he was laughing at me and I got very worked up about it.
Q. In fact
A. And I regret it.
Q. Thank you. You finished?
A. Yes, ma’am. | 75 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:76 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. In fact, the police report appears at page 254 of that folder.
A. Yes. I’ll need to read this. It’s the bottom half or top half?
Q. It is the bottom half. It has nothing to do with the office of water, does it?
A. I disputed at the time all, some of these details, what went on. I can't remember exactly what went on but there was some sorting out by the prosecutor and my solicitor and I was found guilty or pleaded guilty and I got the bond now. Word for word what he's got there isn't right. There weren't things that, things he said I disputed at the time but I've pleaded guilty to yelling at him and, but I never stalked him or rang him or done anything to him or hurt him or touched him.
Q. But you threatened his life.
A. No, I didn’t. That's one of the things. I never threatened his life. I didn’t threaten to kill him and I had a witness there as well..(not transcribable).. | 76 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:77 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. Because he stopped the trucks containing landfill coming onto the property, didn’t he?
A. He did, yes.
93. Mr Lewis accepted that he was found guilty by a magistrate of what was described as a “road rage incident” that occurred on 2 August 2014, in which he punched someone (T 104.50). Mr Lewis was found guilty of assault. Mr Lewis began to explain that he was surrounded by a group of people that stopped him from driving, but was not permitted to complete his explanation.
94. All of these matters put Mr Lewis’ character in a bad light, but I do not accept that they discredit him to the extent that the Court should reject the evidence given by Mr Lewis on the basis that he is entirely uncreditworthy. | 77 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:78 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 95. The approach that Mr Stewart took to responding to Mr Lewis’s evidence about the amount of the cleanup and remediation work that he did on Lots 1 and 2 was to rely primarily upon the evidence of a registered surveyor, Mr Daniel Fitzhenry, who inspected the properties on 19 August 2016, and prepared a report of his observations and conclusions concerning the work that may have been done on the properties. I will consider this evidence below. It will be seen that Mr Fitzhenry’s evidence was primarily based on a ‘snapshot’ of the properties about 12 months after Ms Mayhew tried to evict Mr Lewis.
96. Mr Lewis was cross-examined about some of the photographs contained in Mr Fitzhenry’s report concerning his inspection of Lots 1 and 2 on 19 August 2016 (T 93.1-97.16). The following are the most significant aspects of that evidence:
Q. … Have you seen a copy of the surveyor's report which was handed up to his Honour yesterday?
A. I don't recall. | 78 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:79 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. If you turn to page 6 of that document you can see a coloured photograph? Yes?
A. Yes.
…
Q. In the foreground of that image, can you see rusted machine parts?
A. I can see the old…(not transcribable)…that I use to…(not transcribable)…the paddock that's connected to my tractor. All that equipment's gone because it's over near the William's farm shed where I placed it.
Q. In the middle of that image can you see an old house?
A. Yes, I can, yes.
Q. Nobody's done any work on that house for a long time, have they?
A. Not for the last year and a half, but how that house is exposed, that old house…
A. This old house was totally covered in lantana and privet and it had a large amount of vegetation on the roof, your Honour.
Q. Mr Lewis, that's nowhere in your evidence, is it?
A. No, not in detail, no.
…
Q. If you turn the page to page 7--
A. Yes. | 79 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:80 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. --"numerous large and live privets on the lot", that's lot 2, isn't it?
A. Well, that's on both properties, lot 1 - lot, sorry, both orchards on lot 2 and looking at that, I'm pretty certain that's the first orchard and you can see it's cleared between the trees. It's overgrown with long grass and there is still small privet around, but the bulk of it has been cleaned - pulled out, and you can see the difference with google earth photos when you line up the google earth photos.
Q. If you go to page 8--
A. Yes.
Q. --there's another colour photograph of the old house, isn't there?
A. Yes, there is, yes.
Q. No work's been done on that property, has it?
A. Yes it has. All the lantana was cut back year and a half, two years - two years, three years ago. Several sessions I cut all that back to how that is now--
Q. That's not in your evidence though, is it?
A. --and it's just overgrown and no it's not in my affidavit… | 80 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:81 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. … Go over the page to page 9.
A. Yes. I say the roof's started to fall down.
Q. There's a number of old pieces of machinery there--
A. Yes, yes there is?
Q. --aren't there? There's an old vehicle to the back of that shed, isn't there?
A. Yes, there certainly is. I -there are a couple - there was an old car that the tree's grown through but, there's the old machinery and that is what I put there when I cleaned it up and put it beside the house - beside this old house.
Q. No, that's not in your evidence. Your evidence--
A. No. No, you--
Q. is that you removed this stuff. You cut it up and removed it.
A. --you're right Mrs Pringle. That's the same as before. I haven't got it written up in detail in my affidavit's name.
Q. Over the page to page 10.
A. Yes. That's my son's machine in the background. That is lot 1. There are some..(not transcribable)..sections that belong to my son. | 81 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:82 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. Who authorised your son to bring equipment on to the property?
A. I did.
Q. On what basis?
A. Well, because I was allowed to by Mr Stewart. That's why, and because that lot is left to me and that's my block and that's what William - Mr Stewart said.
Q. He didn't give you open slather with that property, did he?
A. Yes, he did. He said, "Kev, you do whatever you like there," but not under those circumstances to do the wrong thing and I don't believe for one minute I ever have.
Q. That's not in your evidence, is it?
A. No, Madam, it's not.
Q. Go over the page to page 11.
A. That is the mound in the background where the machine's sitting.
Q. Excuse me? I didn't hear that?
A. Where that machine is sitting, is the mound.
Q. Which photograph are we talking about?
A. Number ten.
Q. Page 10? Yes. | 82 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:83 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. That is the mound and the ground level right where the fence is, is higher than it originally was when they first started, what his…(not transcribable)…started there.
Q. Because you've been dumping on the property, haven't you?
A. Sorry?
Q. Because you've been dumping on the property?
A. No. no.
Q. That's what you were doing in 2012, isn't it?
A. No. No, no, that's incorrect.
Q. When the trucks were bringing in the fill - you said, trucks were brining in the fill?
A. Yes, on the river bank and down the haul road - the old haul road down to the river, and I filled in the hole that was left over - the tip from all the rubbish that I pulled out. That's what the material went into. The mound that you can see in the background is the tailings and there are photos of that area and the tailings in my evidence.
Q. That's completely unclear that that's a mound.
A. Well, I apologise. I truly do. | 83 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:84 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. Turn the page to page 11?
A. This is a picture of the old house and you can see the trucks lined up with the old - I think it's an FC Holden - and I cleaned all that out. Not where - I didn't touch the FC but what I did do, was I cleared and pulled all the vegetation out off the house and off between the vehicle and the truck and then I lifted--
Q. That's not in evidence.
A. --the trucks, the old trucks into the position that they're in now.
Q. So, you didn't remove them at all?
A. Sorry?
Q. You didn't remove them at. You just moved them around the property.
A. No, those two are there, but the rest are over at the - at the other - at…(not transcribable)…and you can see the star post on the left - the strainer, the telegraph pole, it's got some oil on it and there's just a temporary fence up that I kept the sheep in with and that helped keep the grass down and keep it clean and tidy. | 84 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:85 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. There's no evidence of sheep on this property, is there?
A. Yes, there is. On the Google Earth photos there's some of them, you can see 'em on the mount - well, I can because I know what I'm looking at.
Q. If you go over the page to page 14.
A. Yes.
Q. There's more rusted farm equipment in the foreground of that photograph, isn't there?
A. Beg your pardon?
Q. There's more rusty farm equipment there in the front of that photograph, isn't there?
A. Are you on - what page are you on?
Q. Page 14. | 85 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:86 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. Sorry, madam, sorry. Yes, yes. Yeah. This is overgrown, your Honour, and this is Will's shed - I call it Will's shed but it was his father and uncle's shed and it was quite overgrown. But when I was there I always kept it tidy and clean and slashed. The maintenance that I carried over the years and it needs a lot more maintenance is the tents blowing off and it needs repairs because the termites are eating the main rafters and stuff out of the shed.
Q. In fact the shed is beyond redemption, isn't it. It can't be saved, can it Mr Lewis? | 86 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:87 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. It could - could be, yeah, it could be. I'd hate to see it get knocked down and in that shed on the right hand side, your Honour, is the marking that Peter Stewart put on a post there inside the shed, and that was the 1962 or 1961 flood that came through there. So if you see that - that fuel tank - that rusty fuel tank to the right of the shed, it's probably about halfway up that tank, nearly three quarters of the way, that's where the flood come - come up to. That - this - those ploughs, that - they - they were - they sit there because we - we use them but that one's damaged - has damage on it.
Q. So you haven't removed the old equipment at all, have you?
A. From where - what - what do you mean?
Q. From the lot.
A. I didn't steal it, no. I didn't
Q. I didn't say you had stolen it. You haven't removed it, have you? | 87 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:88 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. I removed - relocated it on the - on lot 2. Lifted it - I picked it up off the boundaries where it was on that - around the property and underneath the power lines on the easement. I hadn't finished; there's still more to be done. But all the - the parts that you can see - you can't see them now, but there is other stuff, equipment on the other side of the shed and that's where I - you can see it in Google Earth and that's where I stacked and placed everything. I had cleaned quite a bit of stuff off underneath the power lines, but not everything. There is still stuff there.
Q. All of that detail is not in your affidavit, is it?
A. No, Mrs Pringle, it is not. | 88 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:89 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 97. When Mr Lewis was cross-examined about the photographs taken by Mr Fitzhenry and the captions that he added to the photographs, Mr Lewis explained the significance of the photographs by elaborating his evidence as to the work that he had done. Many aspects of the further evidence were not included in his affidavits. It does not follow that Mr Lewis was making up his evidence. The evidence in his affidavit was given at a particular level of generality. As I have observed above, his evidence was relatively detailed given that it was prepared at the level of broad descriptions of the types of work that Mr Lewis undertook over a period of about 16 years. It is not surprising that when Mr Lewis was asked to comment on particular photographs taken about 12 months after he was asked to leave the property, he gave detailed responses that he had not included in his affidavits. | 89 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:90 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 98. More significantly, Mr Lewis was only cross-examined about the state of the properties on 19 August 2016, and what could reasonably be concluded concerning the work done on them in the period two or three years before the date when the photographs were taken. The Court can infer that if Mr Lewis had not continued to cut down the vegetation, and particularly the privets, for some time before the photographs were taken, then regrowth may have had a significant effect on the appearance of the properties. Mr Lewis was also asked about the presence of deteriorating farm machinery and vehicles on the properties. Mr Lewis said that he moved these types of items and collected them near the shed. Apart from Mr Lewis identifying certain machinery as the property of his son, the question of the ownership of these items was not explored. It is likely that property of this nature left on Lot 2 was owned by Mr Stewart. The court cannot know, but it also cannot decide that the residual presence of an amount of farm | 90 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:91 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | machinery and vehicles was inconsistent with Mr Lewis having carried out all of the cleanup and remediation works that he swore that he had done over the years. | 91 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:92 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 99. A part of the evidence in Steven Lewis’ affidavit appears to be relevant to this issue. Steven Lewis said:
20. I recall another conversation about 2007/2008 between William, Kevin and myself at the shed on Lot 2 known as “Stewart’s Shed”. William said to us words to the following effect: “Don’t move anything like the truck or the irrigation pipes on the bank and don’t touch anything in the shed”. I heard this type of conversation a number of other times regarding not to move anything related to the shed. Everything had to stay exactly the same way. The truck was an old rusty truck from about the 1940’s. The Stewart Shed was where William’s father spent most days looking after his orchard on Lot 2. I could tell William was very emotionally attached to his father and always spoke highly of his father. He didn’t want anything moved that were memories of his father. | 92 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:93 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 100. While the issue was not explored by either party, this evidence from Steven Lewis suggest that there were parts of Lot 2 and items of machinery and other goods on that lot that reminded Mr Stewart of his father and that he did not want to be disturbed. Given this evidence, I would not conclude on the basis of the evidence in Mr Fitzhenry’s photographs that the mere fact that some structures on Lot 2 had not been rebuilt by Mr Lewis, and some deteriorating items of equipment had been left on that property, is inconsistent with Mr Lewis’s evidence concerning the cleanup and remediation works that he swore that he had undertaken. | 93 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:94 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 101. The most significant point, however, is that a reading of pars 5 and 15 of Mr Lewis’19 May 2016 affidavit and par 19 of his 28 November 2016 affidavit paints a picture of Lot 1 and parts of Lot 2 being a dumping ground for the refuse and contamination that followed the end of about 15 years of mining for sand, soil and gravel. The types of refuse and discarded machinery and other items that are described in the evidence is much more extensive than odd bits of deteriorated farming machinery and vehicles depicted in the photographs taken by Mr Fitzhenry.
102. I do not consider that the challenge to Mr Lewis’ evidence based upon the contents of the photographs and captions contained in Mr Fitzhenry’s report goes to the heart of Mr Lewis’ evidence concerning the work that he claimed to have done over the years in response to the properties having been used for sand mining and related operations over many years up to the mid-1990s. | 94 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:95 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 103. Mr Lewis was also cross-examined on the critical issue of whether Mr Stewart promised to leave Lot 1 to Mr Lewis in his will (T 103.14-103.33):
Q. It didn’t happen, did it? He didn’t promise to leave you this property in his will.
A. He certainly did promise me.
Q. And he didn’t say he had left the property to you in his will.
A. He had said he left me that property. He promised me that he did and he promised me in front of people that he did and he did so. He, my word, he did.
Q. And you wanted to buy it?
A. Of course. I wanted to live there.
Q. It's not in your evidence, is it?
A. No, it's not in my evidence.
Q. It's not in your evidence?
A. There's a lot of things that aren't in my evidence.
Q. That's right, Mr Lewis. It makes it very difficult, doesn't it?
A. I'm certain. Sure it does. | 95 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:96 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 104. Mr Lewis steadfastly adhered to his evidence that in 2003 Mr Stewart told him that he would leave Lot 1 to Mr Lewis in his will, and at later times told Mr Lewis that he had actually done so.
105. It is important to the issue of what is the appropriate remedy, if Mr Lewis establishes his case, that he claimed in par 19 of his 19 May 2016 affidavit that, in about mid-2003, he ceased paying rent and began paying land rates. Mr Lewis accepted in cross-examination at T 67.29 that he did not pay the rates in cash. He then said that he effectively paid the rates by means of the work that he did on Lot 2. Mr Lewis’s evidence in this respect was not satisfactory. It may be noted that Mr Lewis was bankrupt between 6 September 2007 and 19 December 2010. | 96 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:97 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 106. However, the significance of this aspect of the evidence is that apparently Mr Stewart allowed Mr Lewis to occupy Lot 1 and part of Lot 2 without payment of any rent or license fee from mid-2003. The evidence establishes that, for at least some of that period, Mr Lewis used the property to store his equipment for the purpose of the dragline business conducted by Mr Lewis or his company. | 97 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:98 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Evidence of Steven Lewis
107. Corroboration for Mr Lewis’ evidence on this subject is to be found in the evidence given by Mr Lewis’ brother, Steven. Steven, in his 16 November 2016 affidavit, confirmed the help that he gave to Mr Lewis in relation to the work on Lots 1 and 2.
108. Steven Lewis said that he lived in Melbourne between 2001 and 2007. Before he left for Melbourne, the site contained a lot of metal, machinery, old trucks, other plant and equipment, old sheds, tyres, batteries, wiring, rubbish (including years of buried rubbish), debris, overgrowth of weeds and bush and shrubbery. In more recent times, after Steven's return from Melbourne, he saw Mr Lewis and Mr Lewis' workers operating draglines, excavators, lawnmowers, water trucks (to keep the dust down), and other plant and equipment.
109. Steven Lewis said that he could recall on various occasions when he and Mr Lewis were at Lot 1, that Mr Stewart would arrive to see what was happening and to chat. | 98 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:99 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 110. Steven Lewis gave the following evidence in his 16 November 2016 affidavit:
14. I recall on at least several occasions during 2007 to 2011 numerous conversations occurring in my presence between Kevin and William to the following effect: Kevin said: "Would you like to come and see, Will, the work we’ve done?". William said: "It’s ok Kevin, it’s ok, I trust you and know you would have done a good job, I’ll get there one day and I’ll have a look". Eventually, when William came down to Lots 1 and 2, I heard him say to Kevin on several different occasions: "Yes, you’ve done a good job Kev; you’ve done a good job". | 99 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:100 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 15. I recall a conversation in 2007/2008 at William's home in Windsor Street, Richmond. The occasion was an invitation by William for Kevin and I to come over and have a cup of tea and a chat. Also present in another room was William's mother (Dolsi). I was at the kitchen door. William and Kevin were in the kitchen about 3 feet away from me. A conversation then occurred to the following effect: William said: "My father's property was raped and pillaged by Mick and Geoff, Kevin's helped, done a lot, he’s a blessing to me, he’s done so much work around the properties, around my father's shed. After all Kevin's done, I am leaving the 2 acres to Kevin". I just listened. Kevin nodded in acknowledged (sic) the remark. The reference to Mick and Geoff was to my father and his partner respectively, trading as Whatley Sands.
16. [Rejected]. | 100 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:101 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 17. I believe from my knowledge of the situation, William meant by "rape and pillage" the stripping from the land the good alluvial top soil and sand to sell; to leave behind the tailings and to rubbish the property and not pay royalties to William or his father on the removed soil and sand.
18. I recall at least two further conversations concerning Lot 1 and William giving this property to Kevin, as follows. | 101 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:102 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 19. In 2007/2008 a conversation occurred during a BBQ organised by Kevin at Lot 1 near the shed. William, Kevin, and I amongst others were present. William specifically talked to me. We were standing at the end of one of the outdoor tables which had been set up. William (again) referred to how Lot 1 had been "raped and pillaged" by Mick and Geoff and said: "It really disappoints me what happened and I want the property restored to how it was before when the agreement was first made between my father and Whatley Sands. Kevin's word was good because he has done the work needed to restore it. The 2 acres is being left to Kevin when I die".
111. Steven Lewis was tested in cross examination on the issue of whether Mr Stewart in fact said that he would leave Lot 1 to Mr Lewis in his will (T 113.44 to 115.19):
Q. You do. Okay. Thank you. You say Mr Stewart said, "the two acres is being left to Kevin when I die." Don't you?
A. Yes.
Q. He didn't say that at all, did he? | 102 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:103 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. Yes, he did. He said words to that effect, yes.
Q. Did he say anything else?
A. I don't remember but, I remember the conversation. I remember him mentioning that Kevin's getting the property when he dies.
Q. Kevin's getting the property when he dies or the two acres is left to Kevin when he dies?
A. Yeah, "Two acres will be left to Kevin when I die." He said that.
Q. "The two acres will be left to Kevin when I die." He didn't say that at all did he?
A. I don't know exactly what he said but the words meant that. That was the exact meaning of it, yeah.
Q. That's what you understood? | 103 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:104 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | A. Yeah. When I sat down and done the statement with what's her name, Jordan? That's how we went through it and we worked through it. I'm not very good at recalling memory exactly as it was and word for word after year. I know people that are like that, but I'm not a hundred percent at recall of memory to specific words but, I know what a person meant at that time. There's nothing wrong with my memory. The recall of my memory is not the best and--
Q. In fact he could have said something else?
A. Not something else that meant something different, no. that's what he meant.
Q. That's what you understood?
A. Yes. That's what I understood that he meant, yes, and he said it on other occasions which I knew that he was going to leave the acres to Kevin.
Q. You can't say that, because you haven't included any of that.
HIS HONOUR: Is that right? There's para 15, 18 and 19.
PRINGLE: 15.
HIS HONOUR: Yes.
PRINGLE: Yes, you honour. Thank you. | 104 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:105 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | HIS HONOUR: In the third last line.
PRINGLE: Yes, your Honour, "I'm leaving the two acres to him."
Q. Again, it's not what he said is it? You go to your para 15--
A. Yes.
Q. --and that's supposed to have occurred in 2007 or 2008. Is that correct?
A. Yes. That's when - when Dulcie, yeah - when Dulcie was in the room but I didn't see her that day. Yeah, and that's when we were in the kitchen at Bill's place. I'd been in that kitchen probably twice in my life. Sorry, I shouldn't have said that.
Q. So you didn't actually go to Mr Stewart's p[lace very often?
A. No.
Q. You can't remember exactly what he said?
A. Not exactly. I know what he meant.
Q. That's not the same, is it?
A. It is. I know - I know that he said that he's leaving the two acres, lot 1 to Kevin. He mentioned it a number of times, specifically the ones that I remember and they're written down. There was always of it. | 105 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:106 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. There was always talk by whom?
A. Not - not always but in different - there was always talk of how his property's being treated when we used to talk about it. He hated what had happened to them and how Kevin was fixing it and he mentioned a number of time about how he was giving the property to Kevin, and how--
112. It was not put to Steven Lewis that he had made up his evidence in consultation with Mr Lewis. The Court would ordinarily take into account, however, in considering the weight to be given to Steven’s evidence that he was the plaintiff’s brother. Steven readily accepted that his evidence was intended to assist his brother (T 111.26). However, it may be noted that Steven was taken to a New South Wales Police report dated 4 November 2007 where, following something said by Mr Lewis to his brother on the telephone, Steven rang the police. The following evidence was given (T 112.16 to 112.31):
Q. So you felt threatened by Kevin on this occasion.
A. Yeah, yeah. | 106 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:107 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Q. So would you call your relationship with him close at the time that you had this incident?
A. (No verbal reply)
Q. So you call police on him despite the fact that you're close.
A. Yeah.
Q. Because you felt threatened.
A. Yeah. I feel threatened by - a lot of people I've rang the police, I'm - I'm still close with. I dunno how - how some people - me and Kevin have grown up together, he's - we've had lots of trouble as brothers and friends. And on this particular incident, I think Kevin said he's coming around to my mother's place. I didn't like the thought of that. Mum didn't need that at the time.
113. This evidence tends to suggest that the relationship between Mr Lewis and his brother, Steven, was not without its troubles. | 107 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:108 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 114. Steven Lewis gave his occupation as being a window cleaner. He did not appear to me to be particularly articulate, but on the other hand he gave his evidence in a straightforward way within his abilities. Having listened to him give evidence, I did not discern any reason why the Court should treat him as being anything other than a witness of truth. | 108 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:109 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Exhibit A
115. Mr Lewis prepared a number of exhibits to his 18 September 2017 affidavit (Exhibits KJL-1, 2 and 3) which apparently contained a substantial number of photographs that Mr Lewis believed would corroborate his claims in relation to the cleanup and remediation work that he had done on Lots 1 and 2. Those exhibits were not tendered into evidence. Instead, a selection of the photographs in the exhibits was tendered by Mr Lewis without objection as Exhibit A. The exhibit is described as: “Selection of photographs and other documents from Exhibits KJL-1, 2 and 3… (with parts not to be admitted redacted)…” | 109 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:110 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 116. In essence, Mr Lewis had compiled a substantial number of photographs and, by one means or another, added captions to the photographs that represented his understanding of their significance. Mr Stewart objected to the evidence being received in this form. Following discussions between the legal representatives of the parties, parts of the captions were redacted. It was agreed that redacted parts would not be received into evidence. Exhibit A therefore contains a substantial number of photographs (there are 119 pages in the exhibit) with various truncated captions.
117. The Court has been left to interpret Exhibit A using its own devices. This is a problematic exercise as the evidence is necessarily episodic, and it would not be safe for the Court to make detailed findings of fact concerning the significance of the evidence without significant further explanation, which is not available. | 110 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:111 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 118. I therefore think that the Court must take a conservative view as to what findings should be made using the material in Exhibit A. The following summary relates the broad-scale findings that I am satisfied can be made from a review of the photographs and other documents in the exhibit:
1. Pages 4 and 13 are tax invoices from Green & White Transport Pty Ltd addressed to Mr Lewis over the period 30 September 2012 to 19 December 2014 for truck and excavating equipment hire. On some of the invoices Mr Lewis has handwritten a description of the work done on the properties.
2. Pages 14 and 15 appear to be instructions from government bodies on 19 October 2012 and 19 February 2013 concerning the prohibition of importing landfill onto the properties.
3. Page 16 contains before and after photographs of part of the property showing a substantial amount of deteriorated vehicles and steel structures that have been removed by 2006. | 111 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:112 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 4. Generally speaking (the pages are not always in complete chronological order) pages 17 to 55 show the state of the properties and work done in the period up to the end of 2002, which would justify a finding that a considerable amount of disused equipment and steel had been taken from the properties, and privets and other vegetation had been cut back. I have not focused on these pages, as they relate to times before Mr Stewart is first said to have made the representation concerning his will to Mr Lewis in 2003.
5. The pages from page 56 onward often depict the state of an isolated part of the property at times after 2003, in circumstances where no particular inference can be drawn, except that there remains detritus on parts of the property. | 112 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:113 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 6. However, pages 58-62 and 64-70 depict Mr Lewis operating a dragline in the period 2005 to 2009, that at least establish that Mr Lewis was doing work. There are two photographs on page 70 of a before and after nature that show Mr Lewis working the dragline in 2007 to 2008, and the appearance of the same land in April 2013. It does appear that the surface has been substantially cleaned up. Pages 79, 80, 83 and 84 also show work being done during this period.
7. Page 89-91 and 93-97 show the riverbank in early 2013 consistent with substantial earthworks being done in that area.
8. Page 92 is a Google Earth image of the riverbank haul road. The redactions make the caption difficult to follow, but it does appear from the height of the image that relatively fresh work has been done on the haul road. | 113 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:114 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 9. Pages 103-105, 107-108 depict what Mr Lewis described as the mound on Lot 1. The last two photographs are dated 18 April 2013. He said that the mound was made from material on the property that had to be removed, and that it had utility in that equipment could be moved to the mound in times of flood. There is no doubt that considerable earthworks were being carried out on the property.
119. Considering this evidence conservatively, and taken as a whole, it strongly bears out Mr Lewis’ claim that he carried out substantial works, primarily on Lot 1, and on the haul road down to the riverbank, both before and after 2003. It would not be safe for the Court to draw any detailed conclusions concerning the nature and extent of the works, or their utility to Lots 1 and 2. It would be fair to say, however, on an overall basis that as time went by the properties appear to have been generally cleaned up, compared to earlier times. | 114 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:115 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 120. Accepting the difficulty in making reliable judgments about the amount of the work done by Mr Lewis from randomly dated photographs, it should be observed that it appears that a substantial amount of work was done after 2011, which changed the appearance of Lot 1 substantially. | 115 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:116 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Exhibit D
121. Exhibit D consists of (a) two aerial photographs showing the general location of Lots 1 and 2 in relation to the Hawkesbury River and surrounding properties; (b) historical satellite photos of Lot 1 at 19/08/1986, 10/10/1994, and 16/03/2002; (c) Google Earth imagery of the properties at 21/7/2002, 17/4/2006, 11/3/2007, 30/6/2009, 31/1/2014, 16/10/2015 and 5/5/2016; and (d) three images supplied by NSW Spatial Services.
122. These photographs were not put to Mr Lewis in evidence, so the Court does not have the benefit of a description of what each of the photographs depicts. | 116 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:117 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 123. The photographs described above in sub-par (a) only show the general layout of the two lots. It can be said, however, albeit from a substantial height (where a car appears only to be about 1 cm long) that the second of the aerial photographs appears to show Lot 1 as relatively organised and clean, and depicts what I understand to be the haul road down to the river bank, which also appears to be relatively recently worked upon and clean. Obviously, the height at which the photograph was taken is too great to allow anything but an overall impression, and would not show up small items of refuse on the property. Further, the photographs are not dated.
124. The photographs described in sub-par (b) have been taken apparently at a lower height than the photographs referred to above, but still too high to identify any detail on the ground. It appears that on both dates there was a substantial amount of sheds, vehicles and other equipment on Lot 1 (more so in 1994 and 1986). | 117 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:118 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 125. The Google Earth imagery described in sub-par (c) also is taken high off the ground, so that only a general impression can be formed about the state of the surface and the number of buildings and equipment on Lot 1. The state of the lot does appear to change over time, consistently with work having been done. No fine-scale conclusion can be reached on the basis of the images. The most significant images appear to be those taken on 30/6/2009 and 31/1/2014. A considerable amount of equipment appears to have been removed over that period, and at the end Lot 1 appears to be cleaner and its surface more even. The images taken on 16/10/2015 and 5/5/2016 do not appear to differ greatly from the image taken on 31/1/2014, although it appears that the equipment on the lot is laid out in a more disorganised way, and the amount of vegetation appears to have increased over time. | 118 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:119 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 126. Finally, the images supplied by NSW Spatial Services described in sub-par (d) were taken at too great a height to enable the Court to draw any conclusions based upon them.
127. The result is that the photographs and images in Exhibit D provide only general support for a broad finding that Lots 1 and 2 tended to become more cleaned up in appearance over time, until the end of 2014, after which the amount of vegetation on the lots appears to have increased. | 119 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:120 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Evidence of Peggy Lillian Mayhew
128. Ms Mayhew gave evidence by way of an affidavit sworn on 7 April 2017. She was not cross-examined. That circumstance may reflect the fact that Ms Mayhew is apparently only able to give limited direct evidence concerning the facts of Mr Lewis’ claim.
129. Ms Mayhew said that Mr Stewart has experienced ongoing health issues from in or around 2006 and been hospitalised on a number of occasions. He has suffered from sepsis, acute renal failure and a tumour over that time, which resulted in a number of occasions when he required surgery, and extended periods of recovery. In late 2014, Mr Stewart suffered a stroke. Ms Mayhew said that the stroke has rendered Mr Stewart legally incapable.
130. Evidence was given by Ms Mayhew concerning statements that had been made by Mr Stewart, as well as one occasion when she visited the properties with Mr Stewart: | 120 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:121 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 14. In conversations with the Defendant, I recall the Defendant stating the following on numerous occasions where our topic of conversation involved Kevin Lewis and/or the Defendant’s Property: –
(a) “He’s dump demolition material in a great big pile on Lot 1”;
(b) “He’s taken away the good soil from the riverbank. There is a great hole on Lot 1 now!”
15. On one occasion when the Defendant’s health permitted, we travelled together to the Defendant’s Property. The Defendant was almost speechless at the state of Lot 1. I observed a large amount of rubble [rejected] on Lot 1 by the Plaintiff. I recall the Defendant saying to me at this time:
(a) “I feel sick about what Kevin has done to Lot 1.”
16. The Plaintiff was present at the property during the visit referred to in paragraph 15 above. He attempted to speak with the Defendant. The Defendant seemed distraught. He was unable to speak. I heard the Plaintiff to say to the Defendant: | 121 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:122 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | “I will be gone from here and I will leave the keys in the letterbox”.
I observed the Defendant not in response.
17. After leaving the property on that occasion, the Defendant and I stopped at a nearby lagoon so that the Defendant could get some fresh air. The Defendant said:
“Dear God help me, what has Kevin done to me. What a bastard act!”
I understood the Defendant to be referring to the state and condition of Lot 1.
131. It is difficult to know what the Court should make of this evidence. It is not clear when Mr Stewart is said to have made the statements attributed to him, or when he and Ms Mayhew visited the property. It is also not clear what state of health Mr Stewart was in, or how this may have affected his thinking at the time. | 122 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:123 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 132. For example, if Mr Stewart made a statement of a big pile of demolition material being dumped on Lot 1, good soil having been taken from the riverbank, and a great hole being on Lot 1, any such appearance of the property may have been temporary. I do not understand Mr Stewart’s case to suggest that the present state of Lot 1 is as suggested by Ms Mayhew in par 14 of her affidavit.
133. The difficulty in judging the significance of this evidence is increased by the fact that it is Mr Lewis’ case that he expected to inherit Lot 1 and that he had been told by Mr Stewart that he could essentially use the property as his own. It is possible that at a particular time Mr Lewis may have used Lot 1 in some way of which Mr Stewart did not approve. Particular instances of that occurring, assuming that it did, would not undermine the substance of the evidence given by Mr Lewis in support of his case. | 123 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:124 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 134. Mr Lewis responded to this evidence in pars 6 to 9 of his affidavit of 18 September 2017. He denied that he dumped demolition material in a pile on Lot 1 or that he took away good soil from the riverbank. He denied that there was a great hole or any hole on Lot 1. He again described the nature of the work that he had done on the two lots. He admitted that there was rubble in the nature of tailings. Mr Lewis gave a relatively lengthy explanation of his perception of the occasion when Ms Mayhew visited the properties with Mr Stewart, which he said occurred on 18 April 2013. He accepted that Mr Stewart did not treat him in a friendly way, and said (par 8): “… The defendant walked away from me without greeting me and ignored me, that is, no eye contact, no handshake and no acknowledgement. The same with Peggy. This was strange to me… I was not sure what to do, I had approached them and was ignored as stated…” | 124 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:125 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 135. It is relevant to a consideration of Ms Mayhew’s evidence that the will executed by Mr Stewart on 31 March 2014 was tendered into evidence (Exhibit C). Mr Stewart did not object to the tender, but made the point that it was not established by the tender that the will would be the last will and testament of Mr Stewart at the time of his death.
136. It is sufficient to note that, by this will, Mr Stewart left half of his estate to each of Ms Mayhew, and his other sister, Christine Joy Carden, with gifts over if they predeceased him.
137. It must therefore be borne in mind that just as Mr Lewis was a self-interested witness, so was Ms Mayhew. That observation should not be taken to be disparaging of Ms Mayhew, but simply records the fact that she has an interest in conflict with that of Mr Lewis. | 125 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:126 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | Evidence of Mr Daniel Fitzhenry, registered surveyor
138. As noted above, Mr Stewart relied upon an affidavit sworn by Daniel Fitzhenry, a registered surveyor, on 24 November 2017. That affidavit annexed a report of Mr Fitzhenry’s dated 19 August 2016. Ultimately, following objections to parts of Mr Fitzhenry's report, the affidavit itself was not read. Instead, it became Exhibit 1, tendered by Mr Stewart after parts of the report had, following discussions between the legal representatives of the parties, been redacted to delete parts objected to by Mr Lewis.
139. The original report was also tendered, as Exhibit 2, but only for the purpose of putting before the Court the coloured photographs that appeared only in black and white in Exhibit 1.
140. Mr Lewis did not seek to cross-examine Mr Fitzhenry on the contents of his report. | 126 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:127 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 141. In reality, although Mr Fitzhenry is a professional surveyor, his redacted report was admitted into evidence for the purpose of receiving Mr Fitzhenry's description of parts of Lots 1 and 2, at the time of his inspection on 19 August 2016, together with Mr Fitzhenry's conclusions as to what he thought had happened historically on the land.
142. To put Mr Fitzhenry's observations in context, it must be remembered that Mr Stewart’s solicitors wrote a letter to Mr Lewis on 21 August 2015 in which they gave him notice of termination of his use of the property. Mr Lewis responded by lodging his caveat on 16 November 2017, and commencing these proceedings on 4 January 2016.
143. While the matter was not considered in any detail in the evidence, it is likely that Mr Lewis reduced the amount of work that he did in relation to the upkeep of Lot 1, after his tenure became uncertain. | 127 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:128 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 144. Mr Fitzhenry's report takes the form of a response to aspects of Mr Lewis' statement of claim, a copy of which is annexed to the report. Mr Fitzhenry also annexed 11 photographs of various parts of the land, under which there are references to parts of the statement of claim and a commentary by Mr Fitzhenry. | 128 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:129 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 145. Mr Fitzhenry does not appear to have been provided with Mr Lewis' affidavits. The report contains the statement: "Only areas within the competence and knowledge of Registered Surveyor Daniel Stephen Fitzhenry are covered within this Survey Report". It is not clear that all of the observations made by Mr Fitzhenry in the report fall within the expertise of a registered surveyor. Many of his observations consist of opinions concerning facts that are directly material to the allegations in Mr Lewis' statement of claim. Although the report has nonetheless been received into evidence, it will be appropriate for the Court to exercise some caution concerning the weight that it gives to aspects of the report. | 129 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:130 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 146. Mr Fitzhenry's report responds so directly to the allegations made in the statement of claim that the only way the significance of the report can be understood is by summarising the allegations made by Mr Lewis and then dealing with Mr Fitzhenry's responses seriatim. (I will therefore begin the analysis of Mr Fitzhenry’s evidence by stating first the paragraph of the statement of claim to which the evidence relates).
147. Paragraph 9. When Whatley Sands left Lots 1 and 2 in the mid-1990s, there remained unwanted waste including large quantities of old equipment, pieces of plant and stockpiles of tailings.
148. Mr Fitzhenry stated:
I certify that there was no waste mining material on Lot 2. There were substantial quantities of old farming equipment on Lot 2. There were substantial quantities of waste mining material on the fenced area of Lot 1 that used to be leased to Kevin John Lewis. | 130 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:131 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | On the area of Lot 2 that has been fenced and occupied by Kevin John Lewis, there were large quantities of dragline equipment along with sand mining materials used in that industry. There were significant quantities of rubbish within the fenced area occupied by Kevin John Lewis.
149. Obviously, Mr Fitzhenry’s observations of what was on the properties on 19 August 2016 can say nothing about what was previously on the properties and has been removed. His evidence that there was no waste mining material on Lot 2 is consistent with Mr Lewis’ case. The fact that there may have been farming equipment on the lots is a different matter, as that equipment may have belonged to Mr Stewart.
150. Paragraph 12. Upon Whatley Sands’ departure, Mr Lewis commenced to clean up and did other work to Lot 1 and the part of Lot 2 occupied by the Mr Lewis. | 131 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:132 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 151. Mr Fitzhenry said that the majority of Lot 2 was overgrown. The only area of Lot 2 that was not significantly degraded was the area leased to the adjoining neighbours. There was no evidence of any clean up or maintenance operations on the land apart from the areas leased to the neighbours. The part of Lot 1 that was leased to Mr Lewis contained residual dragline equipment and many piles of rubbish.
152. Again, Mr Fitzhenry could not give useful evidence about what had been cleaned up or what had been maintained if there was no evidence that he knew the original condition of the properties. If he inspected the properties some 12 months after Mr Lewis had been told to vacate the property, his opinion that there was no evidence of any cleanup or maintenance would carry little weight.
153. Paragraph 13(c). The benefit to Mr Stewart included cleaning up the properties from mining waste, complying with Hawkesbury Council orders, and returning the properties to their original conditions. | 132 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:133 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 154. Mr Fitzhenry said that the only areas of Lots 1 and 2 that show any indication of mining waste is the fenced area occupied by Mr Lewis. There is no indication on the entire remainder of the farm property of any mining operation having been conducted upon the premises. All of the significant piles of residual equipment on the remainder of the property consist of old farming equipment.
155. That evidence, properly considered, is favourable to Mr Lewis’ case, particularly when the evidence in Exhibit A is taken into account (as discussed above). At least at the beginning of the period there was substantial mining waste on the properties. If the waste was not there when Mr Fitzhenry inspected the properties, it was removed by Mr Lewis.
156. Mr Fitzhenry then responded to some only of the sub-paragraphs of par 14 of the statement of claim, in which Mr Lewis detailed the work that he had carried out.
157. Sub-paragraph (a). Mr Lewis cut up old steel and plant and disposed of it. | 133 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:134 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 158. Mr Fitzhenry said that, on the day of inspection, the only cut up steel and mining plant equipment stood within the fenced area on Lot 1 that used to be leased to Mr Lewis.
159. Again, evidence that there was little cut up steel and mining plant on the properties is consistent with that material having been already removed by Mr Lewis.
160. Sub-paragraph (b). Mr Lewis removed heavy mining waste such as front-end loader tires.
161. Mr Fitzhenry said that there were numerous old truck and vehicle bodies, old cars and old farming equipment and old steel around and adjacent to the dilapidated shed and old house on Lot 2. There was no indication or evidence that any of this equipment and been disturbed or removed or cut up and disposed of. | 134 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:135 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 162. As I have suggested above, it appears to be necessary to distinguish between mining equipment and the detritus left over from mining, and farming implements and equipment including vehicles. Given the evidence in Exhibit A, Mr Fitzhenry’s observation that the vehicles and farming equipment did not appear to have been disturbed or removed does not exclude the truth of Mr Lewis’ evidence. It is also necessary to take into account Steven Lewis’ evidence concerning what Mr Stewart did not want to be disturbed.
163. Mr Fitzhenry did not respond to sub-pars (c) to (f), which related to the removal and disposal of old conveyor belts, truck bodies, old cars, rollers, old plant, old rusted steel, rusted and 44 gallon drums, and the disposal of timber waste.
164. Sub-paragraph (g). Removal of old mining waste and disposal of other objects, material and rubbish.
165. Mr Fitzhenry said that the only old mining equipment waste was within the fenced area of Lot 1 that used to be leased to Mr Lewis. | 135 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:136 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 166. That observation is consistent with Mr Lewis’ case that he removed substantial quantities of old mining equipment waste.
167. Sub-paragraph (h). Carry out earthworks, including clearing of sections of Lot 2, clear and level the entire boundary of Lot 2, strip contaminated soil, stockpiling, dig virgin material out of stripped out areas, remove large quantities of virgin soil, stockpile the virgin material, place back stripped off stock, pile contaminated soil including levelling out of soil.
168. Mr Fitzhenry said that the only sections of Lot 2 that were cleared, maintained and utilised were areas leased by the adjoining neighbours. Virgin soil had only been removed from the part of Lot 1 leased to Mr Lewis.
169. This evidence should be interpreted in the light of the fact that the inspection by Mr Fitzhenry took place about 12 months after Mr Lewis was told to vacate the properties.
170. Sub-paragraph (i). Level out tailings on both lots. | 136 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:137 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 171. Mr Fitzhenry said that the only evidence of tailings was within the fenced area of Lot 1 leased to Mr Lewis.
172. Again, this evidence is consistent with Mr Lewis’ case that he had removed or buried substantial quantities of tailings that had been placed on Lots 1 and 2.
173. Sub-paragraph (j). Remove all contaminated soil and tailings moved off Lot 2 onto Lot 1 into a mound on Lot 1.
174. Mr Fitzhenry said the only evidence of tailings was within the fenced area of Lot 1 leased to Mr Lewis. There were no indications on the remainder of the property of tailings having been in situ.
175. The same observation may be made as was made in relation to the preceding sub-paragraph. As I have recorded above, Exhibit A contains photographs that provide some support for the claim that Mr Lewis constructed a mound on Lot 1.
176. Sub-paragraph (k). Repair damage to the access haul road into Lots 1 and 2 and river. | 137 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:138 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 177. Mr Fitzhenry said that the roads and tracks on the property were in need of repair and showed no sign of remedial works or maintenance.
178. Whether or not the work done by Mr Lewis on the haul road depicted in some of the photographs in Exhibit A improved the structure of the road (which seems to be the case), it clearly appears that substantial works were carried out on the haul road.
179. Sub-paragraph (l). Remove old haul road ramp belonging to Lots 1 and 2 and rebuild to the river.
180. Mr Fitzhenry said there were no indications of any remedial works to or adjacent to the river banks.
181. The same observation may be made as for the preceding sub-paragraph.
182. Sub-paragraph (m). Clean up the whole of Lot 2 of old machinery. | 138 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:139 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 183. Mr Fitzhenry said that the area that used to be leased to Mr Lewis was strewn with residual mining and dragline equipment along with numerous piles of rubbish. The remainder of the property has large areas of very old farming equipment strewn adjacent to the dilapidated farm shed and the dilapidated farmhouse. Only the areas leased to the neighbours showed any indication of clean up activity.
184. To the extent that there was residual mining and dragline equipment on Lot 1, that is consistent with Mr Lewis or his company having owned equipment of that nature for the purpose of conducting a dragline business. Depictions of what appeared to be equipment of that nature on Lot 1 appear clearly from many of the photographs in Exhibits A and D. The existence of very old farming equipment adjacent to the dilapidated farm shed and the dilapidated farmhouse is consistent with the evidence that Mr Stewart did not want those materials to be disturbed. | 139 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:140 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 185. Sub-paragraph (n). Do maintenance on old shed and old house situated on Lot 2 and other maintenance.
186. Mr Fitzhenry said that the old shed and the old house situated on Lot 2 were extremely dilapidated and there was no evidence of any maintenance on these buildings or on any part of Lot 2 apart from the areas leased by the neighbours.
187. Mr Lewis gave relatively detailed evidence on this subject in his cross-examination. I do not understand him ever to have claimed that he had rebuilt the old shed or the old house. They were situated on Lot 2 and were owned by Mr Stewart. Mr Lewis only claimed to have done ongoing work to reduce the overgrowth, and he had stopped doing that sometime before.
188. Sub-paragraph (o). Repair riverbank on Lot 1 to prevent flooding occurring to Lots 1 and 2.
189. Mr Fitzhenry said there were no indications of any remedial work having been conducted at or adjacent to the river bank. | 140 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:141 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 190. I have already considered above the evidence contained in Exhibit A concerning the work done on the riverbank, and the creation of the mound. In any event, given that the works were done over a period starting in about 1998, Mr Fitzhenry’s recent observations would not be conclusive.
191. Mr Fitzhenry made no response to sub-pars (p) to (r) being the cleaning up of the riverbank, the dealing with authorities, and the cleaning up of rubbish and mining waste on the Council reserve.
192. Sub-paragraph (s). Carrying out security and general maintenance on Lots 1 and 2.
193. Mr Fitzhenry said that there was no indication whatsoever of general maintenance and the only areas of the property in clean, tidy and farmed and utilised condition were the areas leased to the neighbours. | 141 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:142 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 194. Mr Lewis claimed to have carried out general maintenance over a period of some 16 years, and I do not consider Mr Fitzhenry’s opinion to be a great weight considering that he only inspected the properties about 12 months after Mr Lewis had been instructed to vacate them.
195. Sub-paragraph (t). Organising a fencing contractor, fencing materials and a survey of the boundaries of Lot 1 and the northern boundary of Lot 2.
196. Mr Fitzhenry said that the only fences in reasonable condition were those containing the area that used to be leased by Mr Lewis.
197. I do not consider this statement of opinion to be substantially inconsistent with Mr Lewis’ case.
198. Mr Fitzhenry did not respond to the allegation in sub-par (u) that Mr Lewis had to deal with disputes concerning neighbours.
199. Sub-paragraph (v). Generally maintaining and improving Lot 1.
200. Mr Fitzhenry said that the area leased to Mr Lewis contained residual mining and dragline equipment and significant piles of junk and rubbish. | 142 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:143 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 201. That observation is consistent with Mr Lewis having believed that he could use Lot 1 as his own, and the fact that he did store his own and his former company’s mining and dragline equipment on the property.
202. Sub-paragraph (w). Destroying privets and dead orange trees to the whole of Lot 2.
203. Mr Fitzhenry said that the orange orchard on Lot 2 was in an extremely degraded state and was extensively overgrown. There were numerous privets and dead orange trees within the orchard. There was no indication of any privets or dead orange trees having been removed.
204. Mr Lewis responded to this allegation in the extract from his cross-examination that is set out above. The only photographs of privets being removed are at the beginning of Exhibit A, early in the period when Mr Lewis was working on the properties.
205. Paragraph 16. An allegation concerning the equipment used by Mr Lewis in carrying out the works. | 143 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:144 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 206. Mr Fitzhenry's response was simply to say that there was no evidence to suggest that any fair or reasonable maintenance had been carried out on the property.
207. As captions to the photographs included in his report, Mr Fitzhenry made the following comments, which also referred to various sub-paragraphs of par 14 of the statement of claim (the comments overlap):
1. All of the orange orchard is completely overgrown and degraded.
2. There are no signs of any maintenance having been carried out to the orchard for many years.
3. There are numerous dead and dying orange trees.
4. The orchard is infested with weeds and privets.
5. The only areas of the property that are not significantly degraded are the areas leased to the neighbours and part of Lot 1 that used to be leased to Mr Lewis.
6. There was no indication that any old machinery had been cleaned up on Lot 2. Vast amounts of old machinery remains in situ on Lot 2. | 144 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:145 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 7. There is no sign of any maintenance having been carried out on the old house situated on Lot 2. The house is extremely dilapidated.
8. The only area on Lot 2 that is in good order is the area leased to the neighbours.
9. There is no indication of any maintenance whatsoever to the old house on Lot 2.
10. There is no sign whatsoever of any short-term or long-term maintenance having been carried out to the old shed on Lot 2.
11. The land around the old shed and around the old house is covered with old trucks and old cars, rollers and old farm plant and old farm steel items. There is no sign of any of this material having been removed from the property. | 145 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:146 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 12. The fenced area of Lot 1 that was leased to Mr Lewis contains old steel and plant material and junk that is not of a farming nature. The material consists of residual dragline equipment related to dragline operations and not to farming operations. Large quantities of virgin soil have been removed from Lot 1
13. There are numerous old truck and vehicle and car bodies on the property (in a photograph depicting the old house). There is no indication that vehicles or trucks or old cars have been cut up and disposed of. There is no indication that rollers, old plant and old rusted steel has been cut up and disposed of.
14. There was no sign of any repair or maintenance work to any of the roads or tracks on Lot 1 or Lot 2.
15. There was no indication of any maintenance work on the river banks. | 146 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:147 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 16. There was no sign of any old plant or old rusted steel having been cleaned up, cut up or removed from the property (in the context of a photograph of the old shed). The old shed is extremely dilapidated and there is no sign of any maintenance whatsoever, having been carried out on this structure.
208. I consider that the responses that I have set out above concerning Mr Fitzhenry’s evidence in response to the paragraphs of Mr Lewis’ statement of claim cover the captions made by Mr Fitzhenry in respect of the photographs that he has attached to his report. | 147 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:148 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 209. I find that the process that Mr Fitzhenry has adopted in giving evidence in response to the paragraphs in Mr Lewis’ statement of claim is deficient for a number of reasons. First, as I have noted above, there is no appearance that Mr Fitzhenry was given Mr Lewis’ evidence, so he has responded to allegations rather than the evidence provided to establish the allegations. Secondly, Mr Fitzhenry does not appear to have been provided with the photographs and other documents in Exhibits A and D. While, for the reasons that I have discussed above, there are significant limitations on the utility of the photographs, they do clearly establish that Mr Lewis carried out substantial works on the properties in the period from 1990, or thereabouts. The approach adopted by Mr Fitzhenry depended upon the validity of the conclusions that could be reached in relation to the truth of the allegations in the statement of claim, from a single inspection of the properties on 19 August 2016. It did not help that the | 148 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:149 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | inspection took place some 12 months after Mr Lewis was told that he would be required to vacate Lot 1. In fairness to Mr Fitzhenry, he probably did not have instructions that would cause him to think that it may be necessary to distinguish between mining equipment and detritus and vehicles and farming equipment on the land that may have been the property of Mr Stewart or his father and uncle, rather than the leavings of the parties who formerly conducted mining operations on the properties. | 149 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:150 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 210. In short, while Mr Fitzhenry’s evidence is capable of establishing refinements as to the precise circumstances of the properties as at 19 August 2016, I do not accept that it logically undermines the weight of the evidence that supports a finding that Mr Lewis substantially carried out the works that he claimed. | 150 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:151 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | The legal nature of Mr Lewis’ claims
211. Mr Lewis put his claim on two grounds. The first was that he and Mr Stewart entered into an oral contract in 2003 under which, in return for Mr Lewis agreeing to continue to clean up and remediate Lots 1 and 2, Mr Stewart would leave Lot 1 to Mr Lewis in his will. Mr Lewis claimed that he performed his part of the bargain until he was prevented by Mr Stewart from doing so in October 2015, when Mr Stewart repudiated the contract by failing to execute a will leaving Lot 1 to Mr Lewis, before he ceased to have the capacity to make a will, and by expressing an intention to sell Lot 1. Mr Lewis seeks damages for breach of the contract. | 151 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:152 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 212. The second basis of Mr Lewis’s claim was also based upon a promise made by Mr Stewart in 2003 that he would leave Lot 1 to Mr Lewis by will if Mr Lewis continued to clean up and remediate Lots 1 and 2. Mr Lewis claimed that he has an equitable estate or interest in Lot 1, or is entitled to equitable compensation, because as a result of his continuing to clean up and remediate Lots 1 and 2, until Mr Stewart denied him access to the land in 2015, Mr Lewis would suffer detriment, if Mr Stewart were permitted to depart from the promises that he made, or alternatively the assumptions held by Mr Lewis. He put his claim on the basis of estoppel by encouragement.
213. In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Handley AJA, with whom Allsop P and Giles JA agreed, set out the following propositions concerning contracts not to revoke a will, or to leave property by will, or a proprietary estoppel by encouragement based upon similar promises: | 152 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:153 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [31] Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract: Birmingham v Renfrew [1937] HCA 52; 57 CLR 661, 683. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime: Synge v Synge [1894] 1 QB 466 CA, 470–1, but is subject to the claims of creditors if the estate is insolvent: Schaefer v Schuhmann [1972] AC 572 at 586, but compare (1972) 88 LQR at 321–2. | 153 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:154 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [32] A contract not to revoke a will is subject to contingencies. Revocation by operation of law on remarriage is not a breach: Re Marsland [1939] Ch 820 CA. The promisee must survive the promisor to avoid lapse: Re Brookman’s Trust (1869) LR 5 Ch Ap 182; and a contract for a share of residue is subject to the claims of creditors: Jervis v Wolferstan (1874) LR 18 Eq 18 at 24; Schaefer v Schuhmann (above) at 586, but compare (1972) 88 LQR at 321–2.
[33] A contract to leave property by will is subject to lapse if the promisee pre-deceases the promisor, but will not be affected by his marriage. The contract will be defeated by a disposition in the promisor’s lifetime to a purchaser for value without notice: Schaefer v Schuhmann (above) at 586. | 154 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:155 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [34] A contract not to revoke a will, or to leave specific property by will could be defeated, if there were eligible dependants, by an order for provision under the Family Provision Act: Barns v Barns [2003] HCA 9; 214 CLR 169, or the designation of the property as notional estate under ss 22(4)(f) and 23(b)(iii) of that Act (since 2008 under corresponding provisions in the Succession Act 2006). If the promisor marries, and his marriage ends in divorce, the Family Court could order a transfer of the subject property to the wife and defeat any contract by the husband to leave it to someone else in his will.
[35] A proprietary estoppel by encouragement based on similar promises must be subject to the same contingencies. | 155 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:156 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [36] The plaintiff knew that a will can be revoked at any time, and Mr Harper submitted that a promise about an existing or future will had to be understood in the same way. In some cases this could be the proper finding but testamentary promises are not always revocable. This is clear from the cases on testamentary contracts, and it is denied for estoppels by encouragement based on testamentary promises by Flinn v Flinn [1999] 3 VR 712 at 736 per Brooking JA and by Gillett v Holt [2001] Ch 210 CA, 227–8 where Robert Walker LJ said:
… the inherent revocability of testamentary dispositions (even if well understood by the parties …) is irrelevant to a promise or assurance that “all this will be yours” … Even when the promise or assurance is in terms linked to the making of a will … the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention and is tantamount to a promise. | 156 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:157 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 214. It appears to follow that the ultimate effect of a contract to leave particular property by a will, or the consequences of estoppel by encouragement, cannot always be known until after the death of the promisor or the person making the assurance. Events that occur after the death, such as the making of claims by creditors or applications for family provision relief, may affect the manner in which the promise or the assurance is capable of creating an interest or estate in the subject property. To use Handley AJA’s term, the rights that the promisee or the recipient of the assurance is capable of enjoying in the property are contingent on various circumstances. This outcome appears to arise on the basis that, if the promise or assurance is to leave property by will, the promise or assurance can only be expected to take effect subject to extraneous legal principles that affect the operation of wills or grant third parties rights to the property in the estate, notwithstanding the terms of the will. | 157 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:158 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 215. Even though any estate or interest in the property the subject of the promise or assurance may be defeasible upon the occurrence of a relevant contingency, it should not follow that the promisee or the person receiving the assurance has no interest in the subject property capable of being protected by equity before the death of the deceased, and the subsequent outworking of whatever events may in the particular circumstances give third parties rights in respect of the property in the estate that may cut across the interest that may otherwise have existed in the subject property. | 158 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:159 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 216. The nature of any remedy that equity may give before the death of the promisor or person making the assurance will depend upon the circumstances. If the promisee has rights that equity would recognise and enforce following the death of the promisor and the absence of the occurrence of any of the contingencies referred to by Handley AJA, the promisee should be treated as having a defeasible interest in the subject property. The promisee should not be treated as only having a personal right of action against the promisor. Equity should not, however, grant to the promisee any remedy before the promisee’s interest in the subject property becomes absolute, because of the absence of any likelihood of a relevant contingency occurring, which would have the effect of enforcing in favour of the promisee a non-contingent interest in the subject property. But, if the contingency occurs, and the promisee’s interest in the subject property is defeated, the promisee in appropriate circumstances should have an | 159 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:160 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | alternative claim for equitable compensation against the estate of the promisor. Alternatively, if the possibility of a contingency occurring in the future means that the subject property may be sold, equity may recognise an alternative interest of the promisee in the proceeds of sale. Each case will depend upon its own circumstances. | 160 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:161 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 217. Thus, even while the promisee’s interest in the subject property is contingent or defeasible, equity may grant a remedy, such as an injunction against disposing of the proceeds of sale of the property, to protect the promisee pending the death of the promisor and the ascertainment of the effect of all subsequent relevant events.
218. Handley AJA identified the detriment that is relevant in the making of an estoppel by encouragement enforceable in the following manner:
[41] The relevant detriment is not the loss flowing from non-fulfilment of the promise or assurance: Commonwealth v Verwayen [1990] HCA 39 ; 170 CLR 394, 415 per Mason CJ, 429 per Brennan J, 445 per Deane J. | 161 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:162 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [42] The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. This was explained by Dixon J (the Dixon principle) in Grundt v Great Boulder Pty Gold Mines Ltd [1938] HCA 58; 59 CLR 641, 674–5 (Grundt): | 162 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:163 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the | 163 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:164 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. | 164 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:165 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | [43] In Legione v Hateley [1983] HCA 11; 152 CLR 406, 437 Mason and Deane JJ said that the Dixon principle applies to a promissory estoppel. In Cameron v Murdoch [1983] WAR 321 at 351–2 Brinsden J held that it also applied to an estoppel by encouragement, as did Robert Walker LJ in Gillett v Holt [2001] Ch 210 CA, 232–3. The joint judgment in Giumelli [1999] HCA 10; 196 CLR 101, 124 adopted this view.
[44] The Dixon principle was treated as applicable to proprietary estoppel in Sullivan v Sullivan [2006] NSWCA 312; and Donis v Donis [2007] VSCA 89 at [54]. | 165 |
nsw_caselaw:5b6138ebe4b0b9ab4020e477:166 | nsw_caselaw:5b6138ebe4b0b9ab4020e477 | decision | new_south_wales | nsw_caselaw | text/html | 2018-08-02 00:00:00 | Kevin John Lewis v Peter William Stewart by his tutor Peggy Lillian Mayhew [2018] NSWSC 1186 | https://www.caselaw.nsw.gov.au/decision/5b6138ebe4b0b9ab4020e477 | 2024-05-26T15:04:18.898590+10:00 | 219. Later, Handley AJA dealt concisely but at some length with the principles that govern how the Court should fashion a remedy in cases of proprietary estoppel by encouragement at [53] to [78]. These principles will ultimately be relevant to the present case if Mr Stewart makes out his claim based upon estoppel by encouragement. For the sake of brevity, I have respectfully edited his Honour’s reasons (principally, where particular observations are not germane to the present case) as follows: | 166 |
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