Redenbach v Norris Bros Pty Ltd

HIS HONOUR: The Lachlan River is the fourth longest river in Australia commencing near Goulburn in the Great Dividing Range and ending at the Great Cumbung Swamp near Oxley New South Wales. [1] It is the only river in New South Wales with significant wetlands along its length rather than just towards its end. [2]

In the early 1920’s and 1930’s at least three of eight siblings, members of the Norris family, were born in Lake Cargelligo, a township in central western New South Wales taking its name from an associated natural lake known for recreational activities including water skiing and kayaking. [3]

The lake is one of the lakes that provides significant drought refuges and significant impacts on the functioning of the Lachlan River catchment system. [4]

The river traces the northern boundary of a property known as Cocos, located approximately 50 kilometres west of Condobolin, associated with the late Ronald James Morris (deceased), the farmer and grazier who resided on a property, Fairview Cargelligo.

Ironically, the aquatic features which significantly impacted the utilisation and value of Cocos and other properties held by Ronald form part of the geographic background to a claim for rectification of Ronald Norris which omitted reference to a water access licence (WAL).

The plaintiffs, Ronald’s executors, contend that Ronald by his last testamentary instrument made on 8 February 2018 (Will) intended to give WAL 1670 to his nephew Brian James Miles (Brian), but the Will prepared by a solicitor, Mark Andrew Manning Olsen (Mr Olsen), omitted specific reference to it. For the reasons I now elaborate, I find the contentions established and the omission can be effectively cured.

The events regarding this claim centre around four of the Norris family siblings and their farming lands. For convenience and without intending any disrespect, I will refer to the various individuals by their given names. The eight siblings are Elsie, Mavis (her married surname being Harvey) Harold, Edna, Lorna, John, George and Ronald.

Mavis has one child, Neil, and Neil has two children, Scott and Kristy. John has three children, Colin, Keith and Brian. Keith has a child, Michael.

None of Harold, George nor Ronald had any children.

George and Ronald lived on the property, Fairfield (otherwise referred to as Fairfield Burgooney).

In or about October 1962, a company, Norris Bros Pty Ltd (Norris Bros), was incorporated.

The brothers had various professional advisors, including the first plaintiff (Mr Redenbach, an accountant) and a solicitor, Mr Olsen.

George and Ronald held various Crown Land properties and WALs in association with Norris Bros. Certain of the properties were held in the sole name of each of George, Ronald and Norris Bros, some were held in the joint names of George and Ronald, and some were held in Ronald’s name with Norris Bros. The various named properties were comprised of a number of different lots.

On 31 January 2001, Harold passed away.

On 2 May 2008, WAL 1670 was issued in the joint names of Ronald and Norris Bros. The precise details for that is unclear but need not be probed.

On 17 January 2007, George made a Will. On 28 October 2014, George died and probate of his Will was granted to Ronald on 8 July 2016. George’s Will relevantly appoints Ronald as executor and, in the events which occurred, left the whole of his estate to Ronald.

On 8 February 2018, Ronald made a Will.

On 19 December 2018, Ronald died and probate of his Will was granted to the plaintiffs.

Ronald held the following property in his own name:

Clause numbers do not appear alongside the first three clauses of the Will. Nonetheless, it is clear enough which content applies to the first three clauses (as I have referenced in italics below). Clauses 1 to 6 of the Will are as follows: [5]

Some of the assets that were part of the deceased’s estate have already been distributed. Mr Birtles in his submissions states:

The Will does not expressly dispose of Ronald’s interests in WAL 1670. On one view, his interest in that asset is disposed generally under residue.

On 28 March 2025, Mr Redenbach and Scott, the executors, filed a summons seeking declaratory relief regarding the Will and an order for rectification.

No defendant was named. Nonetheless, it was recognised that Brian and Neil were affected by the relief sought.

On 7 April 2025, they were served with notices of proceedings by the correspondence with their respective solicitors. On 15 May 2025 and 3 June 2025, Neil and Brian respectively filed notices of submitting appearance.

Subsequently, on 20 June 2025, the plaintiffs filed an amended summons naming Norris Bros as defendant and seeking the following relief, with the strikethrough marking relief no longer sought and the underlining marking additions: [6]

There is evidence that the amended summons has been served. Norris Bros has not filed a notice of appearance.

In common parlance, rectification is “the action of setting right, restoring to a normal or proper condition, or freeing from defects, imperfections or errors.” [7]

Outside the law, humanity’s approach to rectification varies. Nonetheless the extent of the approach is often more fulsome and benevolent than the approach within English law.

The meets and bounds of rectification in law depends upon the jurisdiction involved. Rectification issues often arise in respect of instruments or transactions involving various parties. Common law permitted a form of rectification of a mistake through a means of construction of the relevant instrument in cases of clear error where it was evident what a reasonable person would have understood the parties to have meant. [8]

Equity also has rectification jurisdiction described as reforming the instrument in which the parties had mistakenly expressed an intention. [9]

However, conceptually, there is a “world of difference” in the approaches taken at law and in equity. Thus: [10]

Equity has strict conditions for enlivening the jurisdiction and requires clear and convincing proof of the intention claimed to give rise to the rectification sought. [11]

Notably, it is said there is no equitable jurisdiction to rectify wills. [12] How the law of probate responded to mistakes was outlined by Leeming JA in Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 (Lewis) at [151]-[163]. [13]

Statutory provisions have filled the void within succession law to permit rectifications in specified instances.

Part of the history of rectification of testamentary writings in Australia is recounted in an insightful article by Daniel Carr. [14]

In Lewis, Leeming JA observed [15] that the mistake doctrine is “much affected by statute” and indeed doubted that the “mistake doctrine” can survive in light of the scope and purpose of the statutory rectification power. Nonetheless, in circumstances in which the matter had not been argued, his Honour refrained from expressing any concluded opinion on the matter. [16]

The statutory provisions are not unbounded and have specified limits. Nonetheless, s 27 rectification may cover a multitude of factual circumstances in the form of clerical errors and failures to give effect to the testator’s intent instructions, lapses by omission included.

Section 27 is in the following terms:

I set out the principles regarding s 27 rectification in Reeves v Reeves [2024] NSWSC 134 (Reeves) at [415]-[436]. Regarding clerical errors under s 27(1)(a), I commented:

I have been assisted by Mr Birtles who appeared with Mr Lee with helpful reference to authorities.

In Trimmer v Lax (Supreme Court (NSW), Hodgson J, 9 May 1997, unrep: BC9702254) (Trimmer), his Honour addressed a case of rectification under the (somewhat different) provisions of s 29A of the Wills Probate and Administration Act 1898 (NSW) (WPA) (as it then was known).

In that case, his Honour recounted various pieces of evidence bearing upon intention.

His Honour concluded at page 12 that there was material to suggest the continuity of intention from 1979 to 1989 and beyond that Mrs Lax receive half of the property either in her own right or by virtue of her relationship with Mr Mitchell, her husband who had passed. His Honour did not think that great weight should be given to variation in the way that that intention had been expressed from time to time.

In Vescio v Bannister (Estate of the late Betty Tait) [2010] NSWSC 1274; (2010) 3 ASTLR 619 (Vescio) Justice Barrett described the analysis required by s 27 in the following terms:

Mr Birtles also referred me to a number of English authorities bearing upon rectification. These included Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412, Bell v Georgiou [2002] EWHC 1080 (Ch) and Austin v Woodward [2011] EWHC 2458 (Ch) (Austin). Except in one respect, which I will mention, noting that the English legislation is in different terms to s 27, I consider it a safer guide to refer to and apply the principles as set out in Reeves and Vescio.

I addressed the principles relevant to an extension of time for the making of a rectification claim in Bear v Bear; Jordan v Bear [2022] NSWSC 1687 (Bear). The provisions for an extension of time under s 27 differ to the “sufficient cause” provisions of s 29A(3) of the WPA.

In Bear, regarding the requirement of s 27(3)(a) I stated at [236]-[240].

In addition, an extension of time may only be permitted provided the final distribution of the estate has not been made: s 27(3)(b).

The reference to the “final distribution of the estate” makes it clear that rectification is not precluded if there has been some distribution of the estate but not a final distribution. Quite often in the course of administration of an estate, an executor or administrator will make an interim distribution of some property. Highly material to the Court’s discretion to extend time will be the question of whether the particular provision of the Will which is sought to be rectified deals with property which on the one hand has already been distributed in part or in whole or on the other hand property which has not been distributed (even if there has been distribution of property disposed of by other provisions of the Will). In Bear I stated: [17]

Cocos consists of 2,980 acres, 520 of which are set out for flood land irrigation. WAL 1670 is a Lachlan River (General Security) water licence which was used during Ronald’s lifetime for watering crops to cut for hay and water pastures. The water was pumped directly from the Lachlan River using an onsite fixed 12” pump and delivered to the irrigation paddocks via eastern channels. This allowed Cocos to have a stock carrying capacity of 1,200 ewes with lambs at foot alongside 30 to 40 head of cattle. The ability to water the irrigation paddocks significantly increased the capacity. [18]

Mr Birtles in his submissions outlined the history of WAL 1670 as well as the water license statutory scheme. When Mr Olson first carried out work for Ronald in around 1989 or 1990, water entitlements in relation to the Lachlan River were regulated by the Water Act 1912 (NSW) (WA). Under that Act, a water licence was deemed to be held by and operated for the benefit of the lawful occupier of the land. Upon the commencement of the Water Management Act 2000 (NSW) (WMA), licences issued under the WA generally became replaced by entitlements to water access licences which are transferrable and dealt with independently of the land. [19] Transitional provisions for the replacement of WALs issued under the WA with WALs under the WMA were contained in cll 3, 9, 10 and 23(1) of Schedule 10 of the latter Act.

WAL1670 was issued under s 56 of the WMA to Ronald and Norris Bros on 2 May 2008. The evidence does not directly address the reason why WAL 1670 was issued at that time to Norris Bros Pty Ltd and the deceased as tenants in common.

Mr Birtles submits that the list of properties owned by Harold, George and Ronald prepared by Mr Olson (list) discloses that the land which comprised Cocos was owned by Ronald and Norris Bros. He submits that it is likely Norris Bros and Ronald came to hold WAL 1670 by operation of Sch 10 of the WMA.

In or about late 1989 or early 1990, Mr Olsen became acquainted with Harold, George and Ronald and commenced doing work for them.

During the early 1990’s, he was instructed to prepare Wills for each of George and Ronald. The Wills were almost identical with properties being gifted to specific nephews and great nephews.

At about this time he prepared the list and received instructions from Ronald.

Mr Olsen was aware that prior to about 2000, water licences were attached to the land and for that reason stated it was not necessary to specifically gift water licences prior to this time.

In the late 1990’s, George and Ronald’s Wills were digitised. In or about the early 2000’s, Mr Olsen updated the list to include water licences. The structure of the list, which appears in the form of a spreadsheet, contains folio identifier references for each of the specific Crown Land holdings. Land was itemised first in the list and after those references the final seven items on the list are WAL references, relevantly associated with Fairview, Allawah and Yeronga. The listing of the WAL at the end of the list appears consistent with the change to the statutory regime.

There is certain handwriting on the list made by Mr Olsen and I will come to a particular reference to handwriting associated with WAL 1670 shortly.

On Friday 11 July 2025, Mr Olsen swore a further affidavit supplementing his existing evidence regarding the list. He states the list was created well before Ronald’s death, although he cannot remember the exact date and time. He says, in lighter pencil, he noted where certain assets were to go before he took instructions from Ronald to transfer the Mt Hope properties. He is certain that the notes in heavier pen were made in the presence of Ronald and possibly Scott as he wanted to ensure he had the correct properties and their Folio identifier numbers and WALs married up.

Over the years Ronald provided Mr Olsen with instructions to amend his Will to take account of various events, including Harold’s death, George’s death and the sale and/or transfer of property. However, prior Wills for Ronald were not retained by Mr Olsen or the law practice. It is Mr Olsen’s recollection that it was always Ronald’s intention that Brian was to receive Cocos and the associated water licence. He states: [20]

Scott states: [21]

Mr Olsen frankly indicates that the omission of reference to WALs in Ronald’s Will was an oversight.

Approximately six months prior to Ronald’s death, Ronald gave Mr Olsen instructions to transfer all properties including WALs to persons who would otherwise receive the property under his Will. Mr Olsen started that process. However, it took some time. There was some complication which is not necessary to recount.

Mr Olsen undertook preliminary work to effect transfer of Cocos to Brian prior to Ronald’s death but it was not completed by the time of his death. One issue associated with the delay was a taxation issue which prevented a transfer to Brian during Ronald’s lifetime. Mr Olsen recalls dealing with Scott as Ronald’s attorney.

Mr Birtles’ submissions address the preface to clause 3 as follows:

Mr Birtles reiterated this on the hearing, explaining that the current preface to clause 3 may suggest that the subject matter of clause 3 are exclusively assets of the company whereas in reality they are owned both personally by Ronald and by Norris Bros.

Under s 27(2), an application for a rectification order must be made within 12 months after the date of death of the testator.

There has been some delay in bringing the application. More than 12 months have passed since Ronald’s death on 19 December 2019.

Under s 27(3), the Court may extend the period of time for making an application if the Court considers it necessary and the final distribution of the estate has not been made.

Scott explains the reasons for the delay as follows: [22]

Mr Birtles’ final submission is that Mr Olsen’s oversight not to specifically include water licences, given that he was aware that WALs were no longer attached to the land and were separately transmissible, constituted failure to follow instructions or an error. He submits that there was, in this case, a continuation of instructions, drawing an analogy to the continuity of intention in Trimmer.

Necessarily, Mr Birtles also seeks an extension of time to bring the application. He submits there is no claim of prejudice to any party and that the estate has not been fully distributed.

The evidence which Mr Olsen has been able to give is quite generalised. He has not given particular evidence conveying instructions or regarding preparation of the Will on 8 February 2018 such as how it was prepared, who was present, what specific discussions he had with Ronald or any of the evidence about the typing of the Will to which he and a clerk were witnesses.

Ordinarily, the lack of such detailed evidence might be fatal to a claim for revocation. However, each case is to be determined on its own facts. Obscurity regarding the precise circumstances of the drafting of the Will, due to imperfect recollections of those involved, does not necessarily preclude a successful claim for rectification. [23]

On the facts of this case, there are a number of aspects in the matter which suggest to me that the relief sought should be granted.

First, I accept Mr Olsen’s evidence and Scott’s evidence regarding statements by the deceased which I have referred to above.

Secondly, the various handwritten names on the list include the name of Brian next to WAL 1670. This appears to have been written by Mr Olsen in the presence of Ronald prior to Ronald’s death and before the instructions for the intergenerational transfer of properties. The notation of Brian’s name adjacent to the reference to WAL 1670 is strongly consistent with Ronald’s instructions as deposed to by Mr Olsen and Scott.

Thirdly, there is no suggestion by Mr Olsen that Ronald varied his instructions in respect of WAL 1670 in the making of the Will.

Fourthly, the structure of the Will is important. In clause 3 of the Will, Ronald was evidently cognisant that certain property was held either wholly or in part in the name of the Norris Bros. Clause 3 addresses disposition of certain of the property held by Norris Bros.

There is no obvious rational reason as to why Ronald would have wished to gift Brian not merely the title of Cocos held in the name of Norris Bros, but also stock and/or crops growing and situated on Cocos and yet exclude the very piece of property which would meaningfully allow the stock and crops in the land to be valued and utilised, namely WAL 1670.

Conceptually, the omission might be characterised as a clerical error. However, in light of the general affidavit evidence, it seems to me that it is more appropriately housed under a failure to give effect to the testator’s instructions.

Subject to an extension of time, it seems to me that the relief sought to clause 3(b) should be granted.

It also seems to me that the relief sought to the preface to clause 3 should be granted to give effect to Ronald’s instructions that assets both owned by himself personally and by Norris Bros be gifted in the ways specified in the sub-clauses.

It took some time for the omission to come to light.

In circumstances in which I consider that the mistake is relatively clear and in a context in which the purpose of the revocation is to ensure that the testator’s intentions are given effect to, I consider that it can be said that it is necessary to extend the time for making the application as, without doing that, an order for rectification cannot be made and Ronald’s intention would be stymied.

As I have previously noted in Bear, the reference in s 27(3)(b) of the Succession Act to final distribution of the deceased’s estate not being made is most likely intended to invite consideration of whether there is any prejudice to any party in an order for rectification being made. In this particular instance, the persons affected by the relief sought have had an opportunity to contest the claim and have chosen not to actively do so. No prejudice is suggested.

There has been some distribution of property in the administration of the estate. However there has not been a final distribution. In particular, there has not been a distribution of WAL 1670.

The orders of the court are as follows.