Richard v Richard

1. [1]

   These proceedings require the Court to resolve an intergenerational dispute about succession to and the beneficial ownership of an agricultural property in rural New South Wales that the family cannot resolve for themselves. The potential for satisfactory outcomes of this dispute is constrained to a degree because the parties are in contest over a limited pool of capital.

2. [2]

   The plaintiff, Geoffrey Richard, is the son of the first and second defendants, John and Carol Richard. All family members referred to one another by their first names in evidence and throughout the proceedings, so without intending any disrespect to any family member the Court proposes to do the same in these reasons. Geoffrey is John and Carol’s middle child. They have two daughters, Jenna and Phoebe, who though not parties, are supporting their parents’ side in this dispute.

3. [3]

   The Richard family has farmed a bountiful rural property, “Cooinda”, near the townships of Cassilis and Coolah in north-western New South Wales for many years.

4. [4]

   The core dispute may be simply stated. Geoffrey says that by their conduct over many years both John and Carol induced him to assume that he would ultimately take over and then inherit Cooinda, leading him to his detriment to forego other opportunities that were available to him as a young man and to commit many years of unpaid or low paid work to maintaining and developing the property. Geoffrey’s case is that John and Carol are now estopped from denying that he holds their interest in the property and the enterprise that is conducted upon it, “the JR Feedlot partnership”, subject to the assumptions they induced in him over the years. He now seeks a declaration that John and Carol hold Cooinda and the JR Feedlot partnership on trust for him and that both assets should be transferred to him. the JR Feedlot partnership was formed in 2009 to replace an earlier partnership just between John and Carol and is variously referred to in these reasons as “the new partnership” or “the three-way partnership”.

5. [5]

   John and Carol jointly resist the relief that Geoffrey claims. First, they deny inducing in him the assumptions that he claims and deny that the assumptions are sufficiently certain to be enforceable. Alternatively, they say that if any such assumptions were induced that their fulfillment is subject to conditions that Geoffrey (a) should conduct himself both reasonably and respectfully towards them and (b) should make appropriate financial provision for them to live independently in their retirement after they left Cooinda, neither which he has done or now offers that he is willing to do.

6. [6]

   Geoffrey also brings a claim for ancillary relief. He seeks an account from John and Carol of their use of funds that Geoffrey alleges that they withdrew without proper authority from a more recently formed partnership called by the parties “the new partnership” between John, Carol and Geoffrey and his wife Melissa (“Missy”). John and Caroll also crossclaim for an account against Geoffrey and Missy for their alleged misapplication of funds from the new partnership. Each side alleges that the other now wrongfully retains funds belonging to the new partnership.

7. [7]

   The proceedings were conducted over four days between 2 and 5 June 2025. Supplementary expert evidence was provided to the court on 13 September 2025.

8. [8]

   The Court was well assisted by the legal representatives on both sides of the proceedings. They presented a complex case with precision, attention to detail and elegant legal analysis worthy of the difficult issues that lay behind it. Mr T Alexis SC with Ms A Zheng instructed by Mr O.R. Butler of Cole and Butler of Solicitors appeared for the plaintiff. Dr S. Chapple SC with Mr D Yazdani instructed by Mr G. Hoddle of Everingham Solomons Solicitors appeared for the defendants.

9. [9]

   The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not always include reference to versions of the facts that have been rejected.

10. [10]

    Geoffrey Richard. Geoffrey was a witness of truth. He gave evidence carefully, focused on the questions being asked of him and generally gave direct answers to those questions. He was frank about the limits of his understanding and knowledge and did not offer opinions beyond his competence. He was prepared to acknowledge he could be mistaken when errors were pointed out in his evidence. He did not defend the improbable and was prepared to acknowledge he did not fully understand some of the correspondence from the accountants and professional advisers. Geoffrey had a good grasp of the detail of the operations of Cooinda and the detail of the farming operations of property. His evidence was generally reliable and is mostly accepted by the Court.

11. [11]

    It should be said that Geoffrey was under conscious self-control in his demeanour in court. There were a few flashes of anger with his father but not many. This contrasts with the picture that Phoebe and Jenna drew of him. The Court accepts their version that when conflict broke out, he could be very difficult with his father. He would see that as being responsive to his father’s interference in his conduct of farming operations. But his and Missy’s correspondence and communications with other family members are at times bitter and certainly show they could not take an objective view of this family conflict.

12. [12]

    However, Geoffrey appeared in the court room, certain objective circumstances caused the Court to treat his evidence cautiously. At times his correspondence and conversations were intemperate and unnecessarily disrespectful to his parents. He was prepared to deny John and Carol access to their grandchildren, his children, over this dispute. This conduct, coupled with his and Missy’s correspondence and communications with other family members that were repeatedly bitter, does not give the Court comfort that Geoffrey is able to take an objective view of this family conflict.

13. [13]

    Despite this, the Court accepts Geoffrey’s evidence that John can at times be “unapproachable and difficult” and someone Geoffrey found it difficult to converse with about succession matters. For example, on many occasions during their disagreements, John used succession to the farm as bargaining leverage, “Well, I won’t give you the farm then”. And his frustrations at his financial situation were understandable given he was only receiving modest allowances for living on the farm and over many years had to support his family on Missy’s income as a teacher.

14. [14]

    Two other witnesses in the plaintiff’s case, Missy and William were not cross-examined. Missy gave evidence on some of the substantive issues in contest. William is John’s brother and Geoffrey’s uncle. He gave formal evidence about John’s family inheritance from his late brother Ian, which will be referred to later in these reasons.

15. [15]

    John Richard. John’s sprightly demeanour was impressive despite his age of 87 at the time of the hearing. He was quite an alert witness who did not seem to suffer any major disadvantages from his age. He replied concisely and firmly to the questions put to him. He came across as a very intelligent and astute farmer but one who was used to being an authority in his field. His intelligence and obvious competence in agricultural matters was accompanied by a marked single-mindedness. The Court can readily see that he would defend his own judgments about farming operations where they differed from Geoffrey.

16. [16]

    From time to time there were flashes of great strength and determination in John’s evidence, where he refused to agree with counsel, even where some modification of his evidence would have been reasonable. For example, he did not concede that he had failed to disclose the true nature of his interest in another property located in Kootingal which he said he had gifted to his daughters.

17. [17]

    He chose to use his words carefully, presenting his firmly held views with diplomacy. But he harboured considerable angst at being unable to see his grandchildren, Geoffrey’s children, due to this dispute. He was a generally reliable witness whose evidence is mostly accepted but his outlook and evidence were all somewhat warped by his resentment at what he saw as Geoffrey’s ungrateful conduct, culminating in these proceedings.

18. [18]

    John adhered to an improbable version of events, partly because he perceived it to be in his self-interest to do so. John persisted in saying in evidence that he communicated to Geoffrey that Cooinda would be transferred to Geoffrey on his death. In the Court’s view John did not say this to Geoffrey, until conflict broke out in about 2020 or 2021.

19. [19]

    Mr Alexis SC submitted that John was “a man of his generation” and that he presented “as a dominant, strong, hard man, autocratic in nature”. He was certainly strong-minded and was sure of the correctness of his own judgments but “dominant” and “autocratic” go too far as an accurate description of his nature. He undoubtedly appeared this way to Geoffrey, but it was probably not his nature generally but rather a reaction to the situation in which this litigation had placed him.

20. [20]

    Mr Alexis SC also submitted on behalf of Geoffrey that John was “not a reliable historian” and that corroboration would be needed to accept his evidence, and the Court will be “cautious” in accepting his evidence too readily. A better view is that on critical issues John’s evidence could be distorted by his current perception or reconstruction of past events.

21. [21]

    Carol Richard. Like her husband, Carol demonstrated very strong opinions about the family’s conflict. This was perhaps not surprising given that she too was denied access to her grandchildren whilst the dispute continued. She was very articulate about Geoffrey and Missy’s ingratitude and their unfair treatment of her and John. Like her husband she felt she had been kept hostage from her grandchildren and unjustly and unnaturally cut-off by them by reason of this litigation. She saw these proceedings and the differences with Geoffrey as part of an entrenched conflict where all capacity for objectivity had been lost. Carol did, at times, show impatience with cross-examining counsel’s reasonable questioning, asking, “what’s your point?” and demonstrating an argumentative bent, at least with counsel. Her evidence was generally to be relied on but needed to be approached cautiously on some issues.

22. [22]

    Jenna Armstrong. Jenna was a sensible, reasonable and articulate witness. She said in the plaintiff’s submissions to be too much in her parent’s camp and being “prone to giving speeches in answer to questions”. She was able to talk in detail about her parents’ situation and took their side but not so much as to distort her evidence. She was prepared to make concessions. She accepted (as did Phoebe) that they had both purchased the property in Kootingal on trust for their father to shield it from a potentially adverse outcome from this litigation.

23. [23]

    Phoebe Morgan. Phoebe gave brief evidence. She too was a strong-minded individual who gave evidence closely supportive of her parents’ case. They were living near her and her emotional bond with them, like that of Jenna, was obvious. But as with her sister, her bond with her parents did not distort her evidence.

The Richard Family Farms Cooinda

1. [24]

   John and Carol were married in September 1970. With mortgage finance, they purchased Cooinda in 1974 and ran sheep and cattle on the property through their agricultural partnership, the “JR and CE Richard partnership”. They initially lived in the small farmhouse on Cooinda.

2. [25]

   When they married John’s father, Robert Richard, owned a property in Kangaroo Valley, “Trendally”. When Trendally was compulsorily acquired in 1975, John’s father Robert purchased a residential property in Coolah, the closest township about 25km away from Cooinda. Robert called this residence “Trendally Coolah”. Robert and John acquired Trendally Coolah together as joint tenants. Trendally Coolah was sold in 1983 for approximately $150,000.

3. [26]

   Cooinda comprises some 1440 acres, about 600 acres of which are cultivated for cropping. Cooinda’s primary crops are lucerne, oats and winter wheat, on which cattle graze, as well as on Cooinda’s pastures. Cooinda has the capability to carry 350 head of breeders, depending on seasonal conditions. As well as grazing, the Richard family also operate a 3000 head capacity feedlot on Cooinda. This feedlot became a registered feedlot in 1998 and then fully accredited in 2015.

4. [27]

   Cooinda comprises two lots each with a separate folio identifier under the Real Property Act 1900 s 32 of which John and Carol are the registered proprietors. John and Carol are also the registered owners as tenants in common in equal shares of two water access licences that benefit the farm and are attached to one of the Real Property Act lots.

5. [28]

   As earlier indicated, John and Carol conducted their farming business on Cooinda through the JR and CE Richard partnership, which was also referred to by the parties as “the old partnership” to distinguish it from the later three-way partnership that included Geoffrey.

6. [29]

   In 1976, not long after Cooinda was purchased, John employed a farmhand, Fred McNickle, to assist in the farming and grazing operations at Cooinda. John and Carol established and gained accreditation for a cattle feedlot on Cooinda, which operated successfully enabling them to pay off the mortgage over the property in 1983.

7. [30]

   In 1984 they purchased two neighbouring blocks, Bodalla and Quindallup, for $1,000,000, using the proceeds of sale of Trendally Coolah as a deposit supplemented by borrowed funds. But caught by the high interest rates of the late 1980s they were forced to sell these two properties in 1988.

8. [31]

   Soon after John and Carol purchased Cooinda in 1974, they also started a family. Jenna was born in November 1975, Geoffrey in December 1976 and Phoebe in November 1984. To accommodate their growing household in the late 1980s they purchased a residential property in Coolah for approximately $100,000 (“the Coolah property”), where they found it more comfortable to live rather than on Cooinda itself. The children all went to local primary schools and then to secondary boarding schools in Armidale.

9. [32]

   John and Carol carefully husbanded the family’s often-limited financial resources to develop Cooinda and run their operating partnership, closely assisted by Fred McNickle. They could not expand Cooinda but managed to make a living from it through changing seasons to support their children and send them to private schools. Carol was closely involved in the work carried out on the farm. She assisted in all aspects of working with cattle and sheep as well as with running the family household. As is the pattern with most rural families, on school holidays the children assisted around the farm. From his earliest childhood Geoffrey remembers John taking him around the property in the truck while John was tending to the cattle.

10. [33]

    In secondary school from 1988 Geoffrey boarded away from Cooinda at the Armidale School until he completed his high school certificate. But during all his school holidays, or on weekends when on leave from school, he assisted around the farm. As he matured, he took on more labour-intensive farm work. By the age of 16 he was mustering and feeding the cattle on Cooinda, as well as cattle processing, calf marking, fencing, dehorning cattle and weed spraying. He also acquired general repair and maintenance skills that allowed him to repair the feedlot and fences.

11. [34]

    Even during Geoffrey’s school years, John chose to give him many experiences that would prepare him for a later career in agriculture. In about 1992, when Geoffrey was in year 10 at school, John organised for him to spend a week of work experience at the massive (then 10,000 head) Killara Feedlot on the outskirts of Quirindi in the Upper Hunter of New South Wales. John explained to Geoffrey why he was arranging this, saying to him, “this will be good experience for you to learn more about feedlots, which you can use when you work here at Cooinda.”

12. [35]

    When Geoffrey completed his Higher School Certificate in 1994, he did not go straight back to Cooinda. He sought out tertiary education to improve his broader rural skills and knowledge. The following year he began a two-year Diploma of Applied Science in Livestock Production at Emerald Agricultural College in Queensland (“EAC”).

13. [36]

    Geoffrey says, and the Court accepts, that he was not automatically committed to the idea of working on the family feedlot at Cooinda. His decision to go to EAC supports this conclusion. At that age Geoffrey was looking further abroad for employment opportunities. He was keen to work on the large cattle properties in Queensland. EAC was attractive to him partly because of its proximity to that opportunity - it had its own feedlot, offered more courses specialising in cattle production and directed to cattle husbandry, and had a cohort of students about his own age. Geoffrey lived at EAC during term, returning to Cooinda to assist during college holidays, as he had when he was at school. EAC required Geoffrey to complete four weeks’ work experience per annum. To gain a variety of experience he usually did three of those weeks on farming properties in the Emerald district. John wanted him to keep the connection with Cooinda and asked Geoffrey to do one of those weeks of work experience at Cooinda, which Geoffrey did.

14. [37]

    Geoffrey worked on Cooinda during his holidays from EAC, doing whatever was useful for the farming and feedlot operations there. On the feedlot he processed the cattle, made silage, cleaned out the pens, and spread manure. On the farm he generally fenced, sprayed weeds, completed or repaired fencing, welded and assisted in sowing crops.

15. [38]

    An early conflict in the evidence concerns Geoffrey’s decision to return to work at Cooinda. Geoffrey completed his Diploma at EAC in late 1996 and returned to live with the family at the Coolah property and to work on Cooinda.

16. [39]

    Geoffrey’s account of events at this time is that John asked him to return to work on Cooinda. Geoffrey says he agreed and came home, rather than explore and pursue his other options at that time. Geoffrey did not have one single alternative career ambition, but his EAC Diploma gave him other options. Geoffrey says, and the Court accepts, that he agreed to go back to Cooinda, because he believed his parents were struggling financially. Geoffrey considered John’s health and capability for farm work were declining and he feared that in the medium term that John would not be able to manage the burden of Cooinda’s operations alone.

17. [40]

    John disputes this version at several levels. He does not accept that Cooinda was under financial pressure in 1996, emphasising that financial pressures – including from high interest rates – were far worse in the 1980s. John’s evidence can be accepted that the pressures which resulted in the sale of the two properties John Carroll had acquired were probably worse in the 1980s than the 1990s. Moreover, Geoffrey was probably not privy to the financial operations of the old partnership at that time: he was not a partner. But Geoffrey did have a perception that his parents were struggling financially and that providing his labour to them without charge would be to their advantage at that time, and to the whole family’s advantage in the long-term. There can be little doubt Geoffrey conveyed this perception to John and Carol at the time.

18. [41]

    Geoffrey’s return to Cooinda did benefit John and Carol financially. The consensus arrangement by which Geoffrey worked on Cooinda without being paid a formal wage, but receiving rent-free accommodation and a living allowance, lasted for many years.

19. [42]

    The lack of Geoffrey receiving a formal wage can be directly measured and was later measured in Grant Thornton’s accountancy calculations, as these reasons explain below. One additional disadvantage of lack of wages is the absence of any superannuation component for Geoffrey to commence capital formation for his support later in life. As to the living allowance component of this arrangement, it did not allow Geoffrey to accumulate any savings or form any capital, so he could go and buy his own property. It is difficult to attribute much value to the rent-free accommodation component of Geoffrey’s package which began later when Geoffrey moved to Cooinda. That component probably had more practical benefit to Geoffrey than it was ever a cost to John and Carol.

20. [43]

    Their case does not support the inference that they were ever going to rent out the house on Cooinda to someone other than Geoffrey and gave up that commercial rental opportunity to give the house to him instead. It was somewhat dilapidated and it is doubtful that there was any identifiable rental market for it. Moreover, his being on the property included an on-site trustworthy caretaker’s role. He was more than a mere tenant. From time to time, he was expected to use the house property on Cooinda for the benefit of the business. His proximity to the livestock on Cooinda, his knowledge of its livestock, and his commitment to the business made him the ideal occupant of the house on Cooinda. His later presence there (see below) provided an additional free emergency service the benefit of John and Carol’s partnership business. The Court would not regard this component as either conferring a substantial benefit on Geoffrey or imposing significant financial burden John and Carol. Rather Geoffrey’s accommodation arrangements on Cooinda were to the advantage of the farm’s operations.

21. [44]

    Geoffrey’s other reason for coming back to Cooinda – John’s health and declining capacity – is more difficult for John to dispute. John was born in March 1938. By the time Geoffrey left EAC in 1996, at the age of 22, John was in his late 50s. He might be expected with good health to give perhaps another 10 years of active physical work to Cooinda. But it is highly likely that Geoffrey perceived John’s physical capability was by then beginning to decline or was soon likely to decline. This inference is not diminished by the fact that John has been fortunate to have had remarkable longevity and comparatively good health since that time.

22. [45]

    Rather than offering him the option of using his EAC diploma elsewhere, John’s evidence is that he told Geoffrey that he was “looking forward to working with him”. But John was clear that he did not say to Geoffrey that he “needed” him to return home to work on Cooinda and there was no obligation or pressure on Geoffrey to come back and contribute to Cooinda. John made it sound as though of many available choices Geoffrey just decided that Cooinda was the best for him.

23. [46]

    John and Carroll’s case on this contested issue is unrealistic. Geoffrey’s conduct is only really consistent with a growing expectation that he would eventually take over Cooinda on favourable terms giving him credit for the years of wage-free labour that he was contributing. Geoffrey had just completed a diploma qualifying him to run an agricultural enterprise. It was natural for him to live with his family, as he was then unmarried and family relationships were welcoming for him. Geoffrey gaining experience on Cooinda to put his diploma into practice seemed to be a logical next vocational step for him and his family seemed to be welcome him there at the Coolah property and Cooinda. Whether or not John said that he “needed” Geoffrey on Cooinda, he certainly accepted Geoffrey’s assistance and implicitly communicated to Geoffrey that Geoffrey’s labour and agricultural expertise were already a valuable contribution to the family farming enterprise.

24. [47]

    From the time Geoffrey returned to live with the family at the Coolah property in late 1996 he worked on Cooinda the long hours required for farming life. Geoffrey’s evidence is that he worked 7 days a week, usually starting by 8am and finishing late, often after dark depending on the season. John and Carol do not contest that Geoffrey was a hard worker. But they say that he has exaggerated the hours he worked, adding that he usually did not work on weekends.

25. [48]

    The truth lies somewhere in between. Geoffrey undoubtedly pulled his weight in the day-to-day work of farm operations. The kind of evidence of early conflict about the quantity and quality of Geoffrey’s contribution that might be expected if he was not pulling his weight is absent in this case. Geoffrey presented to the Court as committed and diligent.

26. [49]

    Geoffrey’s work shows that he had initiative. Apart from more day-to-day tasks of looking after the breeders, feeding cattle in the feedlot, delivering and carting stock and picking up grain in the truck, caring for livestock, maintaining plant, machinery and infrastructure, weed control and establishing and maintaining pastures and winter crops, he embarked on other infrastructure projects at Cooinda. He superintended the building of new cattle yards over many months. He upskilled himself so that the old partnership could save costs on contractors. He gained his semitrailer driving licence in 1997 to drive heavier farm equipment and obtained ChemCert accreditation in 1998 so the operations at Cooinda could buy in chemicals for weed spraying. He qualified for a B-Double licence in 2014 allowing him to transport cattle. All this supports the inference that he was hard worker. Moreover, the Court judges John to be a man with high, even demanding, expectations as to work quality. John is unlikely to have tolerated substandard work, even from his own son, for very long.

27. [50]

    Not only did Geoffrey substitute his own labour for some external contractors, in hay making and weed spraying to save the old partnership costs but he also contributed to its income by contributing off-farm income to it in the form of money earned from off-farm spray contracting work.

28. [51]

    Moreover in 1998, within two years of Geoffrey’s return from the EAC, Fred McNickle resigned, on the basis that he appeared to be redundant. There was no need for the family enterprise to carry the financial burden of a paid employee, when Geoffrey was there to contribute as an unpaid family member. Geoffrey certainly worked some weekends and especially during high demand periods, but the Court accepts John’s evidence that when Geoffrey was a young man, he needed to socialise, and John was also often looking after the farm on the weekend to allow that to happen.

29. [52]

    For many years from 1997 John and Geoffrey’s managed to work on Cooinda together very satisfactorily. They understood one another’s farm management objectives and their respective rate of effort. John’s description of their joint work in this period was that they were engaged in “a team effort”. Both father and son worked long hours, on stock work, truck driving, tractor work, sowing, harvesting and fencing.

30. [53]

    Working together meant that father and son could converse on many subjects. One of these subjects was the future of Cooinda. In quieter times at the end of the day’s work, and perhaps travelling to or from Cooinda, in these conversations John said to Geoffrey “you will take over all of this when I die. I want you to carry on the Richard legacy”. John was proud of his own and his father’s skill in animal husbandry and farming and wanted the family grazing tradition to continue and could foresee Geoffrey carrying that tradition on after him.

31. [54]

    These conversations clearly implied that John and Carol wanted Geoffrey to stay and work on Cooinda. Whatever had been the precise conversation between father and son in late 1996, about whether John said that he “needed” Geoffrey on Cooinda, John’s subsequent statements that “you will take over all of this when I die. I want you to carry on the Richard legacy” naturally brought with them other ideas that were bound into these statements. When John said that he wanted Geoffrey to “carry on” the Richard legacy on Cooinda he implied to a reasonable hearer in Geoffrey’s position that Geoffrey (a) would have to fully absorb the Richard farming practices on Cooinda, so he could carry them on later and (b) Cooinda would have to remain viable and survive as a farming operation, so the Richard legacy could be passed on either when John died or if he decided to hand it over before that. Both these matters implied to Geoffrey that John and Carol expected him to continue to work on Cooinda (a) to absorb Richard’s farming practices and (b) to keep Cooinda financially viable through his unpaid labour after Fred McNickle’s departure in 1998.

32. [55]

    Geoffrey was not paid a wage. But he first lived at home at the Coolah property with John and Carol, and his sisters whilst they were living in the household. He benefited by this in not having to support himself and maintain his own household near Cooinda. John and Carol also provided him with an allowance of living expenses. He travelled to Cooinda each day, often with his father. Eventually after about six years of this arrangement, in 2002 and then at the age of about 25, Geoffrey moved out of the Coolah property to live in the farmhouse on Cooinda. By providing him then with a credit card, John and Carol continued to meet Geoffrey’s daily living expenses.

33. [56]

    The farmhouse on Cooinda burnt down in July 2003. John and Carol purchased a 2-bedroom demountable home for Geoffrey to live in on Cooinda while a new farmhouse was being constructed. By the time the new farmhouse on Cooinda was completed in 2006 Geoffrey was in a relationship with Missy. They moved into the rebuilt farmhouse together when it was ready and married in October 2008.

34. [57]

    John encouraged Geoffrey to limit his employment options to Cooinda and not to work off farm. The Court accepts Geoffrey’s evidence that John said to him of Geoffrey’s casual off farm work:

35. [58]

    From John and Carol’s perspective this statement is entirely correct. Any diversion of Geoffrey’s free labour of Cooinda was a disadvantage to their business, unless all Geoffrey’s off farm earnings were ploughed back into the business. Working off farm would obviously allow Geoffrey independent opportunities for capital formation to buy his own place eventually. John and Carol can only have realised that by encouraging Geoffrey to work on farm according to the accepted arrangement, was every day reducing the chance he would ever be able to start his own grazing enterprise or purchase his own property independently of Cooinda.

36. [59]

    Geoffrey accepted the financial arrangement that his parents had outlined described in these reasons. His understandable view was that he could trust that his parents “would eventually make things right”. Geoffrey neither thought about or asked how that would be achieved, because at his then tender age it all seemed a long way in the distance. In a general sense he believed he would assume ownership of Cooinda and would thereby in due course take the benefit of the freely given that he had labour and care invested in the farm. In these early years he believed he would be left the farm but whether he might receive it before that was uncertain and matter for further discussion with his parents.

37. [60]

    In the late 1990s Geoffrey was a member of the household at the Turee Vale residence in Coolah. He lived there with the family until about 2002, when he was about 25 or 26. He then moved into the somewhat rundown old fibro house at the Cooinda farm. The Court accepts this house needed substantial repairs and would not have attracted a substantial market rent. John and Carol did not charge him rent for this house, although his occupation that meant that in practical terms he was on call at Cooinda if required after hours.

38. [61]

    John and Carol subsidised Geoffrey’s living expenses, almost as if he was continuing to live in the household at Coolah. He purchased groceries at the local IGA using the farm account. His parents paid for his household insurance and outgoing such as utilities from the partnership account.

39. [62]

    He did not have his own bank account in the late 1990s and did not have access to financial resources other than through his parents. He obtained a credit card in 1997. But the arrangement was that the bank sent the credit card statements to John for payment. This perhaps had a positive effect of disciplining Geoffrey’s spending and as a result he tried to prioritise putting work-related expenses and necessities on the card.

40. [63]

    Geoffrey was entitled to use all the Cooinda farm vehicles, but these were mainly used for farm work, rather than recreation. There is no real issue in the proceedings that even after Geoffrey’s living expenses and some allowance for outgoings and a nominal rent are brought into account, that the value Geoffrey’s labour, provided a net financial benefit to the defendants.

41. [64]

    Geoffrey met his wife, Missy, in 2001. When they met and began dating, she was a student teacher in Bathurst. In about 2003 the old fibro house on Cooinda burnt down. The family brought a small demountable building onto Cooinda as a temporary replacement.

42. [65]

    Missy moved in with Geoffrey for a short time while he was living in this demountable. From there she was able to make observations about his work patterns, which the Court accepts. She says that he worked on the farm, full time, and as much as 7 days a week. She confirmed Geoffrey’s evidence that when he was not working on the farm, he was generally performing contract spraying on other farms.

43. [66]

    Missy moved away again, as she was working as a teacher at Cobar Public School for a two-year period. A feature of Geoffrey’s working life stands out for her from this time. She recalls that Geoffrey visited her twice only when she was teaching at Cobar. She understood from him he could not visit her because of farming commitments at Cooinda. The Court accepts this evidence which is a practical indicator of the generally seven-day-a-week character of Geoffrey’s work at Cooinda.

44. [67]

    By late 2006, a new residence had been completed on Cooinda. This had been funded from the proceeds of a fire insurance policy on the previous house. Missy and Geoffrey finally set up a household together in the new residence in December 2006.

45. [68]

    The previous financial arrangements governing Geoffrey’s occupation of the residence on Cooinda continued. The partnership paid for utilities and insurance on the house – this being an objective indicator that Geoffrey’s occupation of the house was a genuine business expense, it was of benefit to the business.

46. [69]

    Missy and Geoffrey did not pay any rent or any of the utilities for the house. But they improved and furnished the house, as if it was theirs. They formed a garden and lawns around the building, erected a garage and installed split system air conditioning and a rainwater tank. John and Carol provided them with financial support for all these improvements.

47. [70]

    One significant financial arrangement between Geoffrey and his parents changed, once he had Missy moved into the house together. Missy had qualified and was employed as a teacher by this time. She and Geoffrey met their day-to-day living expenses out of her teacher’s salary. She says, and the Court accepts, that it was necessary to fund their day-to-day living expenses this way as Geoffrey did not have his own regular wages or any savings.

48. [71]

    These arrangements, not surprisingly, became additional sources of later friction between Missy and Geoffrey on the one side and John and Carol on the other, quite apart from differences that John and Geoffrey had about management and farming practices on Cooinda. Missy chafed at Geoffrey having to be responsive 24 hours a day seven days a week on the farm, whilst he was not being paid a wage and they were unable to save other than what was left over from her salary. It is unproductive for the Court to go into the way that these tensions were expressed, but they gave significant momentum to Geoffrey and Missy’s desire to accelerate certainty about their financial future. They were ready to discuss that issue when John broached it in 2008.

49. [72]

    John and Carol had the rare foresight to take early advice about succession planning. They appeared to appreciate as early as 2008, that with a soon to be married son in his early 30s working on Cooinda without wages and with their daughters elsewhere that some forward planning was needed about family succession.

50. [73]

    In April 2008 John and Carol consulted the accountancy and advisory firm, Grant Thornton, to try and isolate the various family, business, and ownership issues they were facing in relation to their farming business and feedlot business on Cooinda.

51. [74]

    Following meetings between John and Carol and representatives of Grant Thornton, on 22 April 2008 at Cooinda Grant Thornton provided a written report to the family. This 2008 report, referred to in these reasons as the “Grant Thornton Report”, but also called by the parties among themselves, a “business continuance plan”, was the first of a series of publications and communications arising from family meetings with professional advisers over the next 18 months, all devoted to the subject of succession planning.

52. [75]

    The Grant Thornton report described the client as being John and Carol, who Grant Thornton clearly perceived had commissioned the report. This correctly reflected John and Carol’s sound initiative in addressing the subject of succession. Among its many subjects the Grant Thornton report gave the following preliminary description about Geoffrey’s contribution to farming on Cooinda up to that point:

53. [76]

    The language of this report is revealing and reflects Grant Thornton’s opinion based on John and Carol’s initial instructions about the issue of succession which they were raising. Driven by a sense of fairness among their children they wanted this issue resolved and their first instructions to Grant Thornton, before misunderstandings developed, give insight into what they were then intending. This first document was available to all parties and is important in framing the concepts in the discussions that followed.

54. [77]

    Its language should be noted. Grant Thornton’s statement “However, in the meantime, arrangements can be made for the passing over of the property to Geoff if that is what is desired” (emphasis added), is not limited as to time and flexibly contemplates Cooinda could be transferred even as early as when the tax losses were being recouped. It contemplates timing the transfer during John’s and Carol’s lifetimes. An objective interpretation of the words “if that is what is desired”, combined with the words “in the meantime”, reasonably imply a process of mutual assent to an inter vivos passing of Cooinda from John and Carol to Geoffrey, not simply a transfer by will after their death. This is reinforced by the following words in the next sentence, “[i]f this is to be pursued” which implies the timing of the transfer is open for future discussion. But the idea of the mortgage back being “forgiven by John and Carol on a subsequent date or in their wills” also implies that the transfer would take place before death and a forgiveness or death or by will, would subsequently take place. Then the expression in the last sentence of the need to “give Geoff certainty as to the ownership of the property for the future” in this context is saying that Geoffrey should have the security of knowing that he will own the property – but importantly in the context that is being thought about as potentially being in the lifetimes of John and Carol.

55. [78]

    There was debate between the parties during submissions as to what “a mortgage back to John and Carol in respect to the value attached to the property” meant in context. Dr Chapple SC submitted that it meant there would always be a price to be paid for the transfer of Cooinda. That is certainly correct as far as it goes and ultimately a price does have to be paid for the transfer of Cooinda. But in the Court’s view it was an inchoate idea at that point with Grant Thornton surmising that some payment would need to be made to John and Carol to sustain them during their retirement, yet how it might be calculated was left undefined at that stage.

56. [79]

    Dr Chapple SC submitted that the Grant Thornton report says nothing about Cooinda “being transferred to Geoffrey absolutely and unconditionally”. Whilst that is perfectly correct, that is not Geoffrey’s case. The Grant Thornton report does imply a realistic possibility of transfer during John and Carol’s lifetimes subject to settling upon appropriate payment to them to sustain them as they aged.

57. [80]

    Two other features of the Grant Thornton report deserve attention. Under the heading “critical issues” in two bullet points the report said:

58. [81]

    Consistent with the earlier text of the report, the first bullet point here contemplates a transfer of Cooinda to Geoffrey before John and Carol’s deaths with any residual debt obligation owed to the parents being forgiven at their deaths. The second bullet point referred to deals with Geoffrey predeceasing his parents which contemplates that the property will be transferred to him before their deaths.

59. [82]

    Because of these available implications from the text of the Grant Thornton report, subject to what followed, it was reasonable for Geoffrey to think there was a real possibility, if not a likelihood that Cooinda would be transferred to him during John and Carol’s lifetime. If John was of the view that any transfer was only likely to take place after his or Carol’s death then John would need to clear that up to avoid any misunderstanding by Geoffrey. One of the issues in this case is whether that should have been done and in the Court’s view the Grant Thornton report frames the issue as placing the practical onus of clarification on John and Carol right at the beginning.

60. [83]

    Before leaving the Grant Thornton report one fundamental part of its structure – which persisted – should not be overlooked in assessing the relationships between these parties. The Grant Thornton report proposed a defined salary income to John and Carol. It provided no equivalent certainty to Geoffrey. The accounting rationale for this was financially understandable – to prioritise recoupment of the tax losses. But its human cost was a different matter. In the Court’s view this structure, with guaranteed in outcome for one side but not the other, was always likely to cause Geoffrey (and Missy) discontent. Sometimes professionally advised financial structures create disharmony without the individuals within them necessarily being at fault or appreciating that the source of the discontent is embedded in the financial structures. It is more than unfortunate that throughout this family’s conflict no one in the family seems to have appreciated this. Perhaps a recognition of it even now might reset the possibility of a family reconciliation despite all that has happened.

61. [84]

    A little over six months later, in early November 2008 John gave instructions to Mr Richard Moffitt at Grant Thornton, to review his and Carol’s wills and for making a new partnership agreement to replace the existing partnership, the JR and CE Richard partnership, to introduce Geoffrey as a partner. John and Carol’s support of this idea of a new partnership to include Geoffrey as a partner had little point unless they all assumed that Geoffrey would stay and continue to farm Cooinda.

62. [85]

    The discussions with Grant Thornton were grounded in an implicit assumption made by John and Carol and Geoffrey that Geoffrey would continue in the long term to work on Cooinda as he had up until then. The Grant Thornton Report acknowledges that Geoffrey’s employment was other than “under commercial salary terms” and that had he been in a commercial arrangement with John and Carol, he would “have been paid $50,000 per annum”. The Grant Thornton Report says nothing about making any immediate changes to this arrangement. Rather it works on the basis that Geoffrey’s past unpaid wages (roughly calculated at some $400,000) in respect to the services he provided would remain unpaid.

63. [86]

    Mr Moffitt advised that one possible financial structure for the family’s forward operations was for Geoffrey to operate the family’s farming business and to make rental payments to John and Carol for the use of Cooinda and John and Carol’s farming plant and equipment.

64. [87]

    But John and Carol did not yet want to retire from active farming and to hand over to Geoffrey full operational control of the farming enterprise on Cooinda. They did not take up this aspect of Mr Moffitt’s proposed structure. Instead, they looked around for another opinion. They wanted to consider their other options. Their preference was to form a new farming partnership, one that included Geoffrey, and for them to stay involved in the family farming enterprise.

65. [88]

    In April 2009, John contacted Mr Peter Portelli, another accountant, to explore other succession planning options. Mr Portelli was already known to Geoffrey. This contact matured into a meeting held on 1 June 2009 at Mr Portelli’s office which John, Carol, Geoffrey and Missy all attended. Neither Jenna nor Phoebe were directly involved in these discussions with Mr Portelli, although they were informed of them later as John and Carol’s intent was to give them reassurance about their futures as well.

66. [89]

    Once again John was driving engaging this new accountant. He wrote to Mr Portelli on 26 May 2009 asking for Mr Portelli to send the family a letter “for clarification a discussion of your ideas of structure and implications of the new entity” (emphasis added) followed by the organisation of a face-to-face meeting “to be arranged ASAP”. An important feature of John’s original request and of Mr Portelli’s reply was the focus on “the new entity”. This was understandable, the discontent with the Grant Thornton report was not with the transfer of Cooinda to Geoffrey potentially during John and Carol’s lifetimes, nor the idea of a mortgage back over Cooinda to secure John and Carol’s retirement after the transfer. John had left behind Grant Thornton’s advice because he wanted to look to look for another structure that did not involve he and Carol taking rent from Cooinda and not having a stake in the operating business. Mr Portelli gave him what he wanted.

67. [90]

    Having taken preliminary instructions, on 30 May 2009, Mr Portelli emailed family members with an outline of a possible new partnership structure for the family, a three-way partnership between Carol, John and Geoffrey to replace the existing JR and CE Richard partnership between John and Carol. Mr Portelli’s 30 May email explained the structure as follows:

68. [91]

    This structure was acceptable to all the family. The context of the 1 June 2009 meeting was looking at this new part of the structure that the family was discussing, the three-way partnership. Dr Chapple SC has strongly and correctly emphasised how little discussion there was at the 1 June 2009 meeting about the transfer of Cooinda to Geoffrey and with no explicit mention of that taking place during John and Carol’s lifetimes. But the explanation for that is that the transfer issue had already been resolved through the Grant Thornton report and the parties did not reopen it. Rather they focused on the new issue of the three-way partnership.

69. [92]

    The parties have only slightly different recollections of what happened at this important meeting with Mr Portelli on 1 June 2009, which took place at Cooinda. Neither side called Mr Portelli to give evidence about his recollections. Neither side established that Mr Portelli was unavailable to give evidence. The Court is not persuaded that a Jones v Dunkel inference should be drawn against either party for not calling Mr Portelli. It is no more reasonable to expect that Mr Portelli would be available to John and Carol than he would be available to Geoffrey: cf O’Donnell v Reichard [1975] VR 916 at 929 and Payne v Parker (1976) NSWLR 191, at 202 per Glass JA. The terms of his retainer are obscure. John and Carol may have engaged him, but he owes duties of care and obligations of confidence to Geoffrey and Missy, who he appears to have been advising as well. Even if a Jones v Dunkel inference were to be drawn in this case it would be a situation of competing inferences that the uncalled evidence would not have assisted either side and the evidence must be considered in the light of those completing inferences: Brandi v Mingot (1976) 12 ALR 551 at 560. The Court has not found Jones v Dunkel inferences of any assistance in resolving the factual issues about the events at this meeting.

70. [93]

    The Court accepts Geoffrey’s account of what was said at the meeting with Mr Portelli on 1 June 2009. Except in one respect John accepts it is accurate. Geoffrey set out the essentials of the conversation as follows.

71. [94]

    John disputed very little of this. He disagreed that in the sentence attributed to Mr Portelli, “You need to keep Cooinda, Cassilis in your names for the time being”, that Mr Portelli used the words in italics. Otherwise, he accepted the accuracy of Geoffrey’s recollection.

72. [95]

    In the Courts view, and as Mr Alexis SC submits, Mr Portelli twice in this conversation connects his statements referring to the timing of the transfer of Cooinda to Geoffrey with John and Carol using up the tax losses. First, Mr Portelli says, “[o]nce you use up the tax losses and pay down some of the debt, Cooinda can be transferred to Geoff.” Later he says, “[a]s I’ve said, we can’t transfer the land to you Geoff until you get rid of some of the debt and your parents use up their tax losses.” By doing this he was filling a gap about the timing of the transfer that was left over after the Grant Thornton report. Yes, as Dr Chapple SC submits, at one point he only refers to “Cooinda can be transferred”, rather than will be transferred and that the discussion is only talking about me are possibilities and does not represent that there will be a transfer at that time.

73. [96]

    But the Court does not accept this contention. Mr Portelli clearly anchors the timing of the possible transfer to the exhaustion of the tax losses. The possibility/probability of that transfer had already been set in the context of the Grant Thornton report. The super adding of this timing element only sought to reinforce the existing concept that was clearly available from the Grant Thornton report – that there was a real possibility the transfer of Cooinda to Geoffrey during John’s lifetime. That is how Geoffrey had interpreted the Grant Thornton report and what had been said to him, and it was a reasonable interpretation.

74. [97]

    Neither Missy’s evidence nor Carol’s evidence about events at this meeting assists an inference in favour of either party’s version of events or understanding of what was to happen with Cooinda in the future.

75. [98]

    Dr Chapple SC also submits that it would be strange for a professional adviser to be speaking about when a client should make an inter vivos transfer. This submission has some force, but Mr Portelli was not advising exactly when John and Carol should effect the transfer but merely emphasising the point where he expected the clients would already be looking to that occurring.

76. [99]

    One way of looking at this case is that when Mr Portelli used the phrase “until you get rid of some of the debt and your parents use up their tax losses” (emphasis added) that Geoffrey took “until” as meaning “when” and John and Carol took it as meaning “not before”. But either way it was reasonable to infer from the conversation, as Geoffrey did, that everyone expected that the transfer would take place within a reasonable time after the exhaustion of the tax losses. And in that context neither John nor Carol made clear that “not before” may have meant to them “not before they died”.

77. [100]

    Dr Chapple SC makes the point that that neither immediately after this meeting nor at any time between 1 June 2009 and 2021 did Geoffrey raise this issue with his parents again until family relations soured. But in the Court’s view this is readily explained by two factors. What had been said was enough to satisfy Geoffrey or any reasonable person in his position that his future was secure and the timing of the transfer was reasonably clear. Geoffrey trusted his parents to do the right thing by him, as he both said and believed. He did not need to seek clarification.

78. [101]

    Shortly after the family’s 1 June 2009 meeting Mr Portelli forwarded a draft partnership agreement to the family. In a covering email on 16 June 2009 Mr Portelli recorded his understanding of his instructions from the meeting. In his covering email he relevantly said, as follows:

79. [102]

    Dr Chapple SC submits that none of what was recorded in this email refers to the transfer of the property and that Geoffrey did not write to seek to correct the record. This submission is not persuasive. Geoffrey did not see this as a set of minutes to be corrected. The main subject of the 1 June 2009 meeting was setting up the new partnership and other ancillary matters and the transfer and its timing were not the focus. Finally, Geoffrey’s understanding of the outcome of the meeting was clear and reasonably held and did not need to be clarified. As Geoffrey explained under cross-examination “that part of the conversation was backing up what was said in the business continuance [the Grant Thornton report], so I was excited to hear the same”.

80. [103]

    The family carried through the decision made at the 1 June 2009 meeting to form a new partnership. On 1 July 2009 the new partnership known as JR Feedlot was formed between John, Carol and Geoffrey.

81. [104]

    The family instructed a firm of solicitors, Hannaford Cox Connellan and McFarland to draft new wills for them. On 6 August 2009 John, Carol, Geoffrey and Missy met with the solicitor at Hannaford Cox Connellan and McFarland. John and Carol instructed the solicitor to prepare wills for them in identical terms, which they each executed. Their wills gave (a) each of their estates to the survivor of the couple, in the first instance, and thereafter (b) Jenna and Phoebe were given the Coolah property, also referred to as Turee Vale; and (c) Geoffrey was given the residue of the estate, which would include Cooinda and their respective interests in the JR Feedlot partnership.

82. [105]

    These wills disposed of the whole of John and Carol’s estates at that time, their only valuable assets being Cooinda, the Coolah property, and their respective partnership interests in JR Feedlot. The gift of residue was therefore effectively a gift of Cooinda and their interest in the partnership.

83. [106]

    After John and Carol’s wills were made copies of them were given to Geoffrey. Geoffrey correctly interpreted that as “a written record of their intention to leave the farm to me”. This gave him the security of knowing that come what may he would receive Cooinda on their deaths. This was an important adjunct to the expectation already created. For reasons unanticipated by any party, John and Carol may have become disabled from deciding about the transfer. Their wills were important security to Geoffrey and provide certainty to Jenna and Phoebe. Their delivery to Geoffrey is not inconsistent with his holding the expectation that he claims.

84. [107]

    It is useful to pause at this point to look at those discussions from the perspective of another family member. Neither Jenna nor Phoebe were directly involved in the discussions with Grant Thornton or the later discussions with Mr Portelli. But it was important to John and Carol to settle a succession plan that came as no surprise to their daughters. They wanted everyone in the family to understand and accept their plan. Jenna and Phoebe’s perception of what the arrangement was therefore provides a valuable contemporaneous perspective in the fact-finding process. Neither of them has a direct financial interest in the outcome of the proceedings. Jenna’s evidence is the more detailed about the arrangements. Phoebe’s evidence is consistent with that of her sister. Other aspects of Phoebe’s evidence, especially with respect to post 2021 events are considered elsewhere in these reasons.

85. [108]

    Jenna’s position was that she had always understood that it was to be Geoffrey’s financial responsibility to look after their parents in retirement, so the Court asked her how she understood that looking after her parents’ needs until their death was going to be measured. For example, was it to be measured by ensuring they had their health needs met and were sustained to some reasonable level, or whether they were entitled to expect greater luxury?

86. [109]

    She replied saying that neither of her parents expected to live as long as they have but she hoped they "lived a lot longer". But she then went on to explain:

87. [110]

    Jenna’s account here captures a significant driver of the dispute within this family. John never really thought he would have to “retire”, or that he and Carol would have to live too far away from the farm. They both clearly loved farming and being part of Cooinda’s enterprise was part of a vital life force for them, particularly for John. In the Court’s view Jenna’s evidence captures the broader family outlook and helps to give a profile to some of the unstated assumptions within the family’s thinking over decades.

88. [111]

    John never wanted to retire. If retirement meant leaving Cooinda and going to something like a retirement village or a residence disconnected from Cooinda, the whole idea of retirement was anathema to him. He would have rejected any such idea outright. Geoffrey understood his parents sufficiently well and he too knew that was unacceptable to them. John and Carol never talked about that kind of retirement. Their idea of “retirement” was to remain close to Cooinda, for John to be contributing on the property, so long as he possibly physically could and for them both to be close to all of their grandchildren, including Geoffrey and Missy’s children.

89. [112]

    Jenna complemented this account by contrasting her and Phoebe’s position with that of Geoffrey’s. She said, and the Court accepts, that when she and Phoebe were asked by John and Carol to give up their rights to any inheritance to the farm, that was on the basis that their parents had explained to them that the farm, "would look after them until they were dead." They assumed that Geoffrey, being an integral part of the farming operations, it would be his responsibility financially to "look after them". Jenna elaborated that she had pursued a professional career during volunteer work overseas and in the Northern Territory and had done so not on the basis that she was accumulating capital to look after her parents as they aged. The Court accepts all Jenna’s and Phoebe’s evidence on this subject.

90. [113]

    What started as an idea to integrate Geoffrey into partnership with his parents to promote smooth succession unexpectedly seeded the opposite result - family tension and conflict. The source of that conflict lies deep in the personalities of Geoffrey and John in particular. But having observed them both give evidence over several days the Court can say that they each had their own views about what excellence in farming meant, John’s informed by decades of experience and Geoffrey’s by the modern methods he learned at EAC but with shorter practical experience.

91. [114]

    It is difficult to analyse just how farming operations on Cooinda altered with the formation of the three-way JR Feedlot partnership instead of John and Carol’s partnership employing Geoffrey. But the three-way partnership did change family and operational dynamics that can be measured at least indirectly by increasing tensions between John and Geoffrey.

92. [115]

    According to John from July 2009 Geoffrey began to undertake more “operational work”, which seems to mean at least making more decisions about what operations would be conducted on Cooinda, which is what one might expect of an equal partnership. But the father and son disagreed about just what “operations” should be conducted on Cooinda.

93. [116]

    These tensions concerning operational matters had led by late 2012 to a significant deterioration in the relationship between John and Carol, on the one side, and Geoffrey and Missy, on the other.

94. [117]

    This litigation is undeserved by this hard-working and sensible rural family. When they foresaw trouble ahead, the family took good professional advice and held meetings to resolve issues. The family decided to convene a meeting to try and address the fast-rising tension between John and Geoffrey in 2012. A first meeting took place on 9 January 2013. It seems to have been an occasion for family members to ventilate their differences but beyond that little was decided.

95. [118]

    The family met again on 17 June 2013. At this second meeting John says in substance that he told Geoffrey that Cooinda was their only real asset and that if Geoffrey was to have the property after their deaths, then the partnership needed to care for him and Carol into retirement and old age. Again, nothing seems to have been resolved at this meeting. But parties at least ventilated their respective views.

96. [119]

    The relationships between John and Carol and Geoffrey and Missy remained tense but diplomatic from 2013 to 2020. No sharp family hostility spilled over during the next seven years. Both sides appear to have put aside their differences for the greater good of keeping Cooinda operational and profitable, including during some lean years of drought leading up to 2020. On Geoffrey’s side this meant putting up with the fact that his father continued to make important decisions within the partnership without consulting him and spending money without consulting him. Geoffrey continued to do additional off farm work and to make improvements to Cooinda such as building new fences, grain storage and grain storage to make feeding cattle easier from about 2019, when his father was 81, he undertook more responsibility for the day-to-day running of the farm.

97. [120]

    The terms on which Geoffrey would enjoy the benefits of Cooinda in the future were left unresolved, partly because both sides recognised they were a long way apart in how to resolve these difficult issues. Geoffrey remained convinced, correctly in the Court’s view, of what he had been told through the Grant Thornton and Portelli meetings. John’s position had begun to harden: he did not see himself ceding control of Cooinda to Geoffrey during his lifetime. He began at times to hint at withholding transfer of Cooinda. The subject was just too difficult for John and Geoffrey to talk about. But in the first year of the Covid pandemic, in 2020, matters came to a head.

98. [121]

    One single allegedly unauthorised financial transaction in February 2020 reignited intra-family conflict. Whether the transaction was indeed unauthorised is considered later in these reasons.

99. [122]

    In February 2020, anticipating his need to secure his financial future in retirement, John withdrew $127,011 from the JR Feedlot partnership to purchase an apartment in Cairns. As he was getting older, he appears to have decided to take direct action to secure his financial position.

100. [123]

     This led to immediate acrimony. Geoffrey accused John of surreptitiously initiating an unauthorised withdrawal from the partnership. John denied the allegation and claimed entitlement to the funds. Open hostility broke out between Geoffrey and his parents. They ceased to be on speaking terms. This remained the case right up to and throughout this litigation. Regrettably so far as the Court could see, they did not speak to or even acknowledge one another in the courtroom during the hearing.

101. [124]

     Geoffrey says that his father took him aside at the machinery shed on Cooinda in early 2021 and had the following conversation with him.

102. [125]

     At one level this conversation looks improbable after so much hostility. John strongly disputes it. But in the Court’s view it should be accepted as having occurred and it contains an important admission from John that the transfer was in immediate prospect because the tax losses had been exhausted. An important reason to infer the conversation did take place is that there were indeed consultations with Mr Portelli shortly afterwards about the price at which Cooinda would be transferred and negotiations also commenced through Geoffrey’s then solicitors. Moreover, it is consistent with a diary entry Geoffrey made at the time. It is probable therefore that some such conversation did occur at that time.

103. [126]

     Concerned about their financial future and the breakdown of relationships with Geoffrey and Missy, John and Carol turned to their daughters Jenna and Phoebe in 2021. John and Carol’s plans for being looked after financially through the continued operations the partnership had foundered on their broken relationship with Geoffrey and Missy.

104. [127]

     Eventually, abandoning hope that Geoffrey and Missy would care and provide for them, they asked Phoebe to create an environment where she could support them as they grew older. Phoebe agreed and John and Carol withdrew a further $175,000 from the JR Feedlot partnership, to assist Phoebe and her husband Zach, to buy a property. At that time Phoebe and her husband, were considering moving from the Merriwa district. The idea was to purchase a place large enough to accommodate Phoebe and Zach and their children and John and Carol as well, either part-time or full-time. John and Carol would supply the funds to meet the loan to valuation ratio on the purchase of this property. They eventually found place in Limbri Road Kootingal, a township close to Tamworth.

105. [128]

     Geoffrey was generally unhappy with this arrangement. He did not see clearly that the need for John and Carol to reside elsewhere had been created by the rift between himself and his parents. He became the author of unnecessarily hostile correspondence with other family members at his time. The Court does not need to go into any of this correspondence, but it was a disharmonising force in family relations.

106. [129]

     John and Carol either moved into, or at the least frequently used, the new property with Phoebe and her husband and their children. This created an immense personal burden for Phoebe and her husband. Phoebe renovated a shearing shed on the property to try and give them all more space. That operated as a temporary respite from the pressure, until John received an inheritance which enabled him and Carol to purchase a property next door to Phoebe’s family home at Kootingal. The property is also in Limbri Road Kootingal (“the Kootingal property”) and has easy access to the residence of Phoebe, her husband and their children.

107. [130]

     The opportunity to buy the Kootingal property arose when John received an unexpected inheritance from his brother Ian of $1.55 million. From that he gifted $917,000 (including costs and stamp duty) to Phoebe and Jenna. They in turn purchased the 13-acre Kootingal property on trust for him. John tried to reserve a little over $300,000 for his and Carol’s household expenses. The Court accepts that John was close to his late brother Ian and that with all the tension within the family weighing upon him, he decided to protect the inheritance by placing it in trust with Phoebe and Jenna.

108. [131]

     The Kootingal property is John’s home, although he still has connections with the house at Coolah. The house on the Kootingal property is suitable for someone aging as it was originally designed for someone who was wheelchair-bound. The present plan is for John to live there so long as he wants to and he can. Separate arrangements exist for Carol. John and Carol do not want to live at the Kootingal property together, although they are nearby to each other. Carol is living with Phoebe and has been since the Kootingal property was purchased. Carol spends considerable time back at Coolah and is still involved in the community there and does not want to abandon Coolah.

109. [132]

     Discussions between Geoffrey and his parents were by now taking place through proxies. One of these was Mr Portelli, who wrote on 26 January 2021 on Geoffrey’s behalf to John and Carol. He informed John and Carol of his recent discussions with Geoffrey and Missy and made an open offer on their behalf with the following elements:

     1. (1)

        Cooinda and the partnership assets (and liabilities) to be transferred to Geoffrey.

     2. (2)

        Cooinda would be subject to a mortgage securing a liability of $1 million owed by Geoffrey to John and Carol upon the transfer of Cooinda, which would accrue interest calculated at 3 per cent of principal and Geoffrey would make a fixed repayment of capital of $80,000 per annum.

     3. (3)

        John and Carol would retain both the Coolah property and the apartment in Cairns.

     4. (4)

        Any outstanding principal due by Geoffrey on the loan to John and Carol would be forgiven in the will of the survivor of John and Carol.

110. [133]

     John and Carol did not accept the offer. They made their own offers during this period. Negotiations continued. Geoffrey wrote to John and Carol on 8 July 2021, stating his then position:

111. [134]

     It is quite evident from this litigation that the breakdown in relationships between Geoffrey and his parents makes the long-term operation of the JR Feedlot partnership as a joint commercial enterprise impossible. It is not necessary to consider these negotiations up to the commencement of proceedings in any more detail because, as is explained below, they were commercially convenient but were not an attempt to formulate principled equitable relief for Geoffrey. Dr Chapple SC appropriately described the offers on each side as “positional bargaining” and they really add nothing to the Court’s analysis.

112. [135]

     John and Carol’s position in this litigation is that they say that they recognise the value of Geoffrey’s labour over many years at Cooinda. They propose either to sell Cooinda and appropriately compensate Geoffrey from the proceeds of sale for his labour or otherwise to transfer Cooinda to him on condition that he will provide them with a secure income throughout their retirement. They acknowledge that he relied upon a representation that he would transfer Cooinda but only on death.

Analysis of the Claims

1. [136]

   The applicable legal principles may be shortly stated. In Sidhu v Van Dyke (2014) 251 CLR 505; (2014) 308 ALR 232; (2014) 88 ALJR 640; [2014] HCA 19 at [1] (“Sidhu”) the High Court emphasised that all the various species of equitable estoppel serve the same fundamental purpose:

2. [137]

   The formulation of these doctrines in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; (1988) 76 ALR 513; (1988) 62 ALJR 110; [1988] HCA 7 at 419 and 404 (“Waltons Stores”) requires four principal elements to be established for Equity to intervene to protect against the detriment which would flow from a party’s change of position if the assumption that led to it were deserted. These elements are sometimes formulated differently into a larger number of less comprehensive requirements.

3. [138]

   The requirements are explained in Waltons Stores at 428-429 per Brennan J, Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; [1989] ANZ ConvR 621 at 601 per Priestley JA, in Giumelli v Giumelli (1999) 196 CLR 101; (1999) 161 ALR 473; (1999) 73 ALJR 547; [1999] HCA 10 (“Giumelli”) and more recently in Kramer v Stone (2024) 281 CLR 484; [2024] HCA 48 (“Kramer”) as follows:

   1. (1)

      one party (“the first party”) creates or encourages another party (“the second party”) to adopt a particular assumption or expectation that a particular legal relationship existed or would exist between them;

   2. (2)

      the second party relies upon that assumption or expectation;

   3. (3)

      the second party’s reliance is known or expected by the first party; and

   4. (4)

      the second party would suffer detriment if the assumption or expectation was not fulfilled by the first party.

4. [139]

   If the first party then fails to act to avoid the detriment then equity may intervene to grant appropriately moulded relief.

5. [140]

   The governing principles in this field are also fully discussed by leading Equity text writers: cf JD Heydon, MJ Leeming and PG Turner, Meagher Gummow and Lehane’s Equity Doctrines and Remedies, 5th Edition, LexisNexis, 2025 (“Meagher Gummow and Lehane”) at [17-065] – [17-134] and M Evans, T Power and J Power Equity and Trusts, 5th Edition, LexisNexis Butterworths, 2024 (“Equity and Trusts”) at [18.25] – [18.86].

6. [141]

   Some authority suggests that there may be a lower standard of clarity for proprietary estoppel cases compared with promissory estoppel: Crown Melbourne v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at [148]-[149]. But such distinctions may perhaps not survive the unifying trend in authority in this field of discourse presaged in Sidhu. Although the requirement for certainty for a promissory estoppel claim has not been doubted, there may be less stringent certainty requirements for a proprietary estoppel claim, as was explained in the Court of Appeal in Kramer: Kramer v Stone (2023) 112 NSWLR 564 at [84]. Depending on context, a proprietary estoppel may be established where the promise or representation relied upon did not define the interest the party was expected to receive: Moore v Aubusson [2020] NSWSC 1466 at [354] and Equity and Trusts, at [18.71].

7. [142]

   But even the requirement with promissory estoppel that the representation or expectation must be reasonably clear and unambiguous needs to be measured against applicable authority in this area, which has been comprehensively surveyed in S. & Q Rares, The Law of Estoppel in Australia Thomson Reuters, Law Book Co, 2026 (“Rares”). The representation or expectation can be conveyed expressly or impliedly including by conduct and silence: Rares at [8.240]. The representation or expectation can lack some specificity and can be in part implied from circumstances: Rares at [8.240]. The requirement for the representation or conduct to be precise and unambiguous does not require that objectively it only conveys a single meaning: Rares at [8.240]. The learned authors of Rares state the law in this area as follows at [8.250]:

8. [143]

   A proprietary estoppel can also be established even though the expectation is based on a promise or representation that would not be sufficiently certain to amount to a valid contract, or is formed on the basis of vague assurances: Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227 at [120], and Equity and Trusts, at [18.71].

9. [144]

   Two statements made in the High Court’s recent decision of Kramer have clarified the content of the elements. The first statement is that if a promise contains encouragement to a promisee, in the sense that a reasonable person in the promisor’s position would expect that the promisee might rely upon the promise by some act or omission, there is no requirement for any further subsequent encouragement or actual knowledge of the acts of the promisee taken in reliance on the promise.

10. [145]

    The second statement is that it is sufficient for an estoppel to arise that either (a) a reasonable person in the position of the promisor would have expected, or (b) the promisor actually expected, that the promise would be relied upon by the promisee in the general (detrimental) manner in which it was relied upon.

11. [146]

    Geoffrey claims that each of these four elements is made out here and the Court should mould relief appropriately for him, subject to the defences fielded.

12. [147]

    In this section the Court analyses whether the elements of Geoffrey’s equitable estoppel claim are made out. The analysis is divided up into the elements of equitable estoppel stated in the applicable legal principles. This analysis has considered the submissions of both parties which are not fully set out in this judgement.

13. [148]

    Encouraging an Assumption or Expectation. John and Carol both encouraged a particular assumption or expectation that a particular legal relationship existed or would exist between them and Geoffrey. At a high level of generality both parties agree upon this part of the case. They both agree that John and Carol encouraged an assumption or expectation in Geoffrey that he would succeed to Cooinda and they would transfer it to him at some time.

14. [149]

    But they disagree about the content of that assumption or expectation in two major respects – timing and price. The first dispute is about the timing of the transfer of Cooinda. Geoffrey says that Cooinda was to be transferred upon expiry of the tax losses. John and Carol say that it was to be transferred only on John’s death.

15. [150]

    Behind these two disputes there is no issue that Cooinda would be transferred to Geoffrey and to no one else. There was never any early discussion about Geoffrey having to bid against third parties to acquire Cooinda. That idea only emerged after relationships broke down in 2021. Both sides assumed from Geoffrey’s decision to come back to Cooinda that he would succeed to ownership of Cooinda at some stage. But at the beginning both the timing and terms of his succeeding to Cooinda were inchoate.

16. [151]

    The second dispute is related to the first. John and Carol’s principal case on the second dispute follows from their position on the first dispute. Because John and Carol contended that the transfer of Cooinda would coincide with John’s death, no consideration would be payable, and it would be transferred by will. Geoffrey says that the understanding was that when John and Carol’s tax losses were exhausted, John and Carol would continue as silent partners in partnership with him but retire from an active role in the partnership. They would share partnership profits with him and that would sustain them financially throughout their retirement. As their relationship is now fractured, he acknowledges that instead of this arrangement he would need to make regular payments to them to sustain them throughout their retirement. He submits the Court should fix the quantum of any such payments in substitution for his primary obligation.

17. [152]

    What was the content of the assumption or expectation? Context matters in answering that question. One of the key pieces of context is Jenna’s insightful evidence in answer to a question from the Court, cited earlier in these reasons under the heading “Jenna’s and Phoebe’s Perspectives”. Jenna’s insights particularly revealed that John and Carol, and especially John, saw retirement as a process not as a single event. John thought that he would always be able to participate in primary production operations at Cooinda until his declining health meant he was ultimately physically incapable of doing so.

18. [153]

    But unsurprisingly neither John nor Geoffrey discussed when that would be. John avoided talking about the unpleasant subject of when he would have to take his farming boots off, to use Jenna’s image. As a result, Geoffrey was reluctant to raise such a prickly matter with his father, who preferred to dance around the two related questions of (a) when he would reduce his operational involvement in Cooinda, and (b) when Cooinda would be transferred to Geoffrey. Any agreement about the date of transfer of Cooinda remained unaddressed except that it would be after John and Carol’s tax losses had been utilised.

19. [154]

    John did think, as Jenna says, he would “die with his boots on”, but that was not a signpost of when John expected a transfer of Cooinda would take place. John expected his active operational involvement in Cooinda to continue until his death. But that could be achieved by John’s continuing involvement in the partnership, after the transfer of Cooinda whilst the process of John’s slow disengagement from operations progressed.

20. [155]

    But John’s expectation does not mean that the other matter of the date that Geoffrey (and John) expected a transfer to occur is uncertain. The date it was mutually expected can be narrowed down from indications in the parties’ outlook, their conduct and the circumstances they faced as found in the narrative of facts.

21. [156]

    First, an early expected transfer date can be eliminated. Neither Geoffrey nor John and Carol expected that the date of transfer of Cooinda to be immediate when the matter was discussed in 2008 and 2009. Geoffrey did not ask for it straight away. He was embarking on marriage. They all accepted that the transfer would be later.

22. [157]

    Secondly, the tax losses still had to be utilised. John, Carol and Geoffrey knew that it was in their mutual financial interests for the transfer to be no earlier than the tax losses were fully exhausted. Both John and Geoffrey are financially astute and masters of farming operations at Cooinda. Neither of them wished to forgo the financial advantage of utilising the tax losses. The mutually expected date was after the exhaustion of the tax losses.

23. [158]

    Thirdly, a late transfer date can be eliminated. Neither Geoffrey nor John and Carol expected that the date of transfer would be as late as John’s death. Although John was prepared to say in Court that the transfer would be “on death” and not before, he did not say that to Geoffrey clearly in 2008 or 2009, or at any time soon thereafter. And understandably so. Had John said this to Geoffrey, the Court infers that Geoffrey would probably have reacted and asked for more certainty about a transfer date earlier than that. And Geoffrey did not ask about it because he perceived that his father would be “difficult” on the subject.

24. [159]

    Geoffrey came across to the Court as quietly proud of his farming judgment and achievements and as one who wanted to enjoy practical control of Cooinda’s primary production operations. This is partly what led to the souring of relations with his father, who wanted the same. Any early indication by John that the transfer would be delayed until John’s death would have produced a strong negative reaction from Geoffrey, who wanted the transfer well before then. John knew that too. But John did not fail to make such a statement to Geoffrey over the years because he did not want to provoke a bad reaction.

25. [160]

    Despite what he said in evidence, the Court does not accept that John believed until much later that the mutual understanding was that the transfer was to take place on his death. John convinced himself after 2021 when his relationship with Geoffrey deteriorated again, that the mutually understood date for the transfer of Cooinda was upon his death. It is curious that only John’s death seems to be regularly discussed in this context. Another defect in this thinking is that it seems to ignore the fact that Carol might live for a long time after John died. John long knew that Geoffrey thought that the transfer was to take place soon after the utilisation of the tax losses. The reasons for this partly lie in the fourth indicator.

26. [161]

    Fourthly, Geoffrey, John and Carol all had a mutually understood and shared common interest in maximising the profitability and efficiency of Cooinda’s operations. This is inferred from the care with which they attended to the accounting issues in question in these proceedings as well as from the obvious competence in rural operations they demonstrated to the Court.

27. [162]

    They knew from no later than the discussions in 2008 – 2009 that at some future point to maintain the maximum profitability and efficiency of Cooinda’s operations they would need to deal with three looming considerations:

    1. (1)

       the decline in John’s energy and physical capacity to contribute to Cooinda, although his farming judgments would probably remain sound,

    2. (2)

       the need for Geoffrey to be given the autonomy, financial security and incentive to take investment decisions for Cooinda’s long-term future beyond time horizon of John’s lifetime and to reward him during his prime earning years, and

    3. (3)

       their advancing respective ages, in that by the end of 2008 John was already 70 and Geoffrey was 32 so that within 10 years John would be 80 and probably less active and Geoffrey, 42 a man in his prime earning years.

28. [163]

    These considerations all point to it appearing to be reasonable for Geoffrey to expect after 2008 – 2009 that John and Carol would transfer Cooinda to him within a reasonable time after the tax losses had been utilised. An inference of a “reasonable time” after the tax losses had been utilised is appropriate because although the parties contemplate that this was the time frame within which transfer would occur, they did not expressly agree it would be immediate. As a practical matter as events unfolded, once John turned 80 in 2018, an age when John’s physical capacity to contribute would be significantly reduced and when Geoffrey’s investment horizons would be more significant in the business operations on Cooinda, a “reasonable time” would need to be measured in months not years.

29. [164]

    In this context a word about John “retiring” is appropriate. There was conflicting evidence in the proceedings about when John would retire. The expression seemed to be used at times in a binary sense (of working one day and then ceasing work altogether). Neither John nor Carol would have accepted that usage. The word “retire” was deployed this way at times in the proceedings as Geoffrey’s case tried to point to a moment of that which Cooinda would be transferred from his parents to him by linking it to retirement. Jenna’s evidence emphasised that John and Carol’s withdrawal from Cooinda was always going to be gradual. But at some stage during a gradual process of withdrawal, and separately, Cooinda was to be transferred to John.

30. [165]

    Dr Chapple SC makes the point that Carol’s evidence was that “there was no expectation that we would ever recoup those tax losses”, which he submits suggests that any promised to transfer the land upon absorption of the tax losses must be seen as probably never coming to pass. That evidence may have been Carol’s private belief, but it was not clearly conveyed to Geoffrey, although Geoffrey understood that this was always a slight risk.

31. [166]

    To the extent that John’s case contained the idea that Geoffrey had to treat his parents with respect for this expectation to be fulfilled, the Court’s view is that such a thing was never contemplated by the parties in 2009. Moreover, the disrespect which has evolved between these parties 500 has its origins in the conduct of both sides and would not be a basis to decide this case.

32. [167]

    Reliance on the assumption or expectation. Geoffrey relied upon the assumption or expectation described above from the time he came back from EAC. The assumption was inchoate before 2008 – 2009 but reasonably well profiled after that time, because of the discussions with the two sets of accountants in those years. Geoffrey’s financial position improved upon his admission to the three-way partnership, the new partnership, in 2009 but thereafter he continued to limit his options in the prime earning years of his 30s and early 40s in reliance upon the assumption or expectation defined in these reasons.

33. [168]

    The Defendant’s Knowledge. Geoffrey’s freely given labour at Cooinda is an uncontested central integer in the Court’s consideration of the relationship between these parties. John and Carol are both astute, commercially-minded people with long experience in agricultural business. They showed excellent business judgment throughout their lives in building Cooinda through good seasons and bad. They cannot but have appreciated for decades that their son was not driving an ordinary commercial wage bargain with them.

34. [169]

    They clearly understood that his acquiescence in continuing to give his labour to their enterprise free of wages, free of employee protections and leave entitlements, free of superannuation benefits, and giving up his freedom to choose employment elsewhere, was based upon an expectation that he would succeed to the farm in due course. Just what was his expectation was the core contest. Both the benefits to them and the disadvantages to him of his acquiescence in this situation cannot but have been obvious given their wealth of experience of rural businesses. The Court infers they understood no later than the first few years after his return from EAC that he was giving up the option to work as an employee for a longer-term benefit: the transfer of Cooinda to him in due course. John and Carrol’s interest in going to accountants in 2008 and 2009 was partly driven by their knowledge that Geoffrey had such an expectation and it needed to be given greater definition.

35. [170]

    Moreover, any reasonable person in the position of John and Carol would also have recognised that Geoffrey had this expectation. But because of the Court’s inferences about their actual knowledge, it is not necessary to apply the objective test stated in Kramer in this case.

36. [171]

    Detriment if the Assumption or Expectation Is Not Fulfilled. Geoffrey will suffer tangible detriment if the assumption is not fulfilled. John and Carol’s position is that Geoffrey should in effect purchase the farm from them at market value. But Geoffrey cannot afford to acquire Cooinda on the open market now because of his relatively poor financial circumstances. Geoffrey suffers the financial consequences from providing his labour over decades to his parents’ farming and feedlot enterprises without charge.

37. [172]

    He has abandoned any economically rational process of capital formation to set himself up independently by middle-age by committing himself and his labour entirely to Cooinda’s grazing and feedlot enterprises. As a result, he does not have the capital to pay for Cooinda.

38. [173]

    If his parents can insist now that he must acquire Cooinda at something like a market price, they would be taking unconscientious advantage of their knowledge of his reliance upon his assumption of a transfer of Cooinda to him by now. In substance they are now demanding that he make a capital payment to them for Cooinda, which they know that he cannot make to them, because long ago they disabled him from forming that capital. To persist in requiring him now to pay full market price for Cooinda would be unconscientious.

39. [174]

    The Court will grant Geoffrey a remedy to avoid any such unconscientious conduct. Just how the remedy should be moulded will be the subject of a relief hearing but some of the issues at a relief hearing are dealt with in the next section of these reasons.

40. [175]

    Geoffrey’s case also calls for the exercise of the Court’s equitable jurisdiction to grant relief against unconscionable conduct. The Court’s approach in this section is to mould the general profile of the relief to be granted but not to make final orders for relief. This gives the parties the advantage of using the Court’s findings and these reasons to put short further submissions about the final form of relief. The Court will eliminate approaches that it does not propose to take based on its findings. The first question is: what is the proper measure by which final relief should be moulded?

41. [176]

    The Proper Measure. The appropriate measure for moulding relief here is what was promised to Geoffery. There are cases of which Giumelli and Sidhu are examples, where justice between the parties will not be done by a remedy which falls short of holding the promisor to the promise made: Sidhu at [85]. It was said in Walton’s Stores (at p 419) that a court of conscience goes no further than is necessary to prevent unconscionable conduct. But in Sidhu (at [85]), the High Court qualified and explained this statement by adding:

42. [177]

    In Priestley v Priestley [2017] NSWCA 155, at [160] (“Priestley”) Emmett AJA applied this aspect of Sidhu, and explained how in cases of “life changing decisions and irreversible consequences” the nature of the detriment suffered may call for substantial fulfilment of the assumption upon which a promisee relied:

43. [178]

    The Certainty of The Promises or Assumptions. Legal principle guides the Court in moulding relief where the promise or assumption is said to be uncertain. Where the expectation is undefined or uncertain, equity can fashion its relief from the circumstances of each case. This feature of equitable estoppel cases – drawing a profile for relief in the face of uncertain promises - has long been recognised and is provided for in the earliest 19th century cases: see Plimmer v Mayor of Wellington (1884) 9 App Cas 699, at 714.

44. [179]

    More recently the same issue was addressed in the Court of Appeal in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, at [92] (“Delaforce”) at [55] (Handley AJA, Allsop P and Giles JA agreeing):

45. [180]

    In contrast, where the expectation is defined with certainty by the party estopped, that is where the Court must start the task of moulding relief: Delaforce at [92]. Here, aspects of the assumptions that Geoffrey made are certain, and some less certain. The Court must look to the circumstances found to identify what is certain and to mould the relief in the face of the remaining uncertainty, to fit the circumstances.

46. [181]

    Other Considerations. Moulding relief in this case also calls upon other relevant considerations discussed by Handley AJA in Delaforce at [60] – [62], including the need for a clean break between hostile parties, the potential impact on third parties, the potential for hardship, the effect of later events that may diminish the equity, and proportionality between the plaintiff’s expectation and the detriment suffered. Handley AJA said in Delaforce at [60] – [62]:

47. [182]

    The vicissitudes that the parties might face in the future should be considered when moulding relief. In applying doctrines of equitable estoppel, the approach to vicissitudes is backward looking and is different from the approach taken in contract. Handley AJA explained this in Delaforce at [81] – [83], where he pointed out that in Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18, Lord Walker (at p 794) and Lord Neuberger (at p 805) adopted the following passage from the unreported judgment of Hoffmann LJ in Walton v Walton (1994):

48. [183]

    The effect of life's vicissitudes in an equitable estoppel case will often be relevant when considering the reasonableness of a plaintiff's reliance on the promises made, and the significance of any changes of position alleged. But some future vicissitudes may need to be considered in a relief hearing in this case, for example what potential hardships might arise for John and Carol, or for Geoffrey in a strict grant of relief in accordance with his expectations.

49. [184]

    This is an appropriate case where relief should be moulded to give effect to Geoffrey’s expectation. Geoffrey’s decision to stay on Cooinda was a life changing event for him, foreclosing his other career options. There is no lack of proportionality between giving relief based on the plaintiff’s expectation and the extent of the detriment that he has suffered.

50. [185]

    The primary methodology. The primary method to give relief is to value Geoffrey’s obligation to support his parents through the equivalent of the earnings of the three-way partnership, as the plaintiff submits. This methodology is justified by the Court’s findings as to the nature of Geoffrey’s expectations. A secondary methodology will be considered below.

51. [186]

    The transfer of Cooinda to Geoffrey is now due, as the tax losses were exhausted by 2021. But the transfer will only occur as part of a grant of relief once the value of Geoffrey’s obligation to support his parents through the equivalent of the earnings of the three-way partnership has been quantified. The parties accept that the three-way partnership could not continue. But that does not mean that assumptions cannot be made about its earnings had it continued as originally contemplated.

52. [187]

    There may need to be adjustments on account of hardship to one party or the other. These adjustments might be reflected in the timing at which payments were made to John and Carol upon the transfer of Cooinda. If relief is given by this primary method, it is difficult to see that John’s recent inheritance from his brother makes any difference to the quantum of the relief granted. This is because the measure of relief is related to the three-way partnership’s probable earnings, not to John and Carol’s present and future needs.

53. [188]

    It may not be as difficult to value the defendants’ two-thirds potential ongoing income from the three-way partnership as it might have been thought. But before other alternative relief structures are considered in a relief hearing an attempt should be made to see whether it is possible to measure either as an annuity (or capitalised into a lump sum) the value of the assumption that both parties made that the defendants would be supported in their retirement through their ongoing interests as silent partners in the three-way partnership. The net earnings stream from the partnership is known for many years in the past and presumably projections can be made into the future on the basis that the three-way partnership had continued.

54. [189]

    This would involve making assumptions about how the three-way partnership would have operated had Geoffrey and his parents cooperated, by making the kinds of business and re-investment decisions that they had in the past. They had a long track record of such decision-making that could be used as a pattern for projections into the future. This approach has the advantage of not only attempting to value Geoffrey’s actual expectation, but it does not require the Court to make other value judgments on matters such as what is a reasonable income stream to support John and Carol to a proper standard of care as they aged. A difficult part of any such analysis is seeking to ascertain (a) what percentage of partnership earnings were ordinarily reinvested to generate future earnings, (b) what percentage of partnership earnings were distributed as partnership drawings, and (c) was there any pattern of taking advances from the partnership in anticipation of future earnings and repaying those advances in later years.

55. [190]

    Other adjustments or moderations might need to be made to whatever financial condition is placed on the transfer of Cooinda to Geoffrey when the primary method is applied at a relief hearing. But these may be fewer than at first thought. The Court raised with the parties during final submissions whether the practical dissolution of the three-way partnership and the result that the various partnership assets had been left with Geoffrey needed to be brought to account in any working out of the payment to John and Carol. On reflection that may not be necessary, as the calculation of the income stream for payment to John and Carol assumes hypothetically that those assets will continue to be turned to account for John and Carol’s benefit. How they are actually used and accounted for can be dealt with independently.

56. [191]

    Some of Phoebe and Jenna’s evidence should be mentioned in this context. At times their evidence went so far as to say that their understanding of the arrangements made by no later than about 2012 – 2013 was that Geoffrey would be entirely financially responsible for looking after their parents once John ceased to be actively working in Cooinda. Jenna said for example that it was always "her expectation that Geoff, through the farm, would look after both my parents’ needs until their death”. She explained what she meant by that was the whole package of the farming partnership and the land.

57. [192]

    This is not the expectation that the Court has found, nor is it an expectation for which relief will be given. The financial expectation to which the Court is giving effect is defined by the probable income stream from the three-way partnership. Beyond giving effect to that expectation, the outcome of relief hearing would not be to decide whether any family member had responsibility to fully underwrite all the personal outgoings to sustain John and Carol throughout the rest of their lives.

58. [193]

    The correspondence in 2021 is ultimately divorced from any attempt to define a principled form of equitable relief. For this reason, the correspondence does not need to be analysed in any detail. The complete breakdown in relations between family members meant that both sides of the dispute thought that the partnership would not be a viable future option in which the parties could jointly produce an income to sustain John and Carol in their old age. This assumption was justified. John and Carol no longer trusted Geoffrey to conduct the JR feedlot partnership in a way which would sustain an income for John and Carol into their old age. Thus, the parties negotiated not on the basis of John and Carol receiving a share of distributable partnership income but an income stream which is sufficient for them to live on.

59. [194]

    This change through the negotiations, though a natural one given the tensions between the parties, made a profound difference to the way that appropriate compensation was being discussed. The principal basis for the grant of relief being discussed in these reasons is to look at the JR Feedlot partnership, a source of income, and to assess to what extent that income can be reliably predicted from the past including the parties’ use of partnership assets for their benefit. But when the parties thought that the partnership could no longer be operated, they ceased to focus on the maintainable earnings of the partnership, but instead began to look at John and Carol's actual financial needs. That introduced through the negotiations, what is ultimately an irrelevant consideration, which should now be acknowledged as such; namely, how much did John and Carol need to sustain themselves in retirement and could the partnership afford to provide that to them?

60. [195]

    If relief is granted to closely track the assumption that Geoffrey made, the questions of what the partnership can afford and what John and Carol needed can be put to one side. A principled approach simply requires the Court to define quantitatively what Geoffrey would reasonably expect to receive from fulfilling his expectation. He was to share the three-way partnership’s operation with his parents and they were to earn their share of its profits. The only question is what those future maintainable profits would be. But this is not an exercise quite like a valuation, in which a price-earnings ratio is applied to a stream of future maintainable earnings. It is a family partnership operating in a seasonal industry dealing in commodities with price volatility. There will be lean years in which the partners will need to borrow against partnership assets to take drawings to maintain an average income stream, despite poor profitability in some years. In subsequent better performing years those borrowings could be repaid. But over time, a pattern or average of what was drawn out of the partnership could nevertheless be calculated based upon the continuation of past partnership practices into the future.

61. [196]

    It is not necessary for Geoffrey to trust his parents or for them to trust him for these calculations to be done. The period of time between 2009 when disputes erupted again in 2020-2021 is a sufficiently lengthy time for reasonable assumptions to be made about how this partnership was operated this will involve assessing their financial decisions in the new partnership probably about some of the following matters: what regular drawings were taken by the parties even where they were to be made up by future partnership profits, what borrowings over Cooinda was the partnership prepared to accept as the price of allowing those drawings against future earnings, what degree of investment in plant and equipment was usual over time, and what salaries were paid (excluding perhaps excluding extraordinary salaries paid merely to recoup tax losses). These are all matters which can be moderated based either on the past conduct of the partnership or in the case of deficient information reasonable assumptions can be made.

62. [197]

    This final stage of the proceedings, ascertaining the final income stream should not be either lengthy or costly for the parties. They have been in dispute for a long time, and this last phase of the dispute can be truncated fairly.

63. [198]

    The Court has in mind that prior to a very short relief hearing that Mr David Mullins would be engaged to undertake the kind of calculation referred to in these reasons. He could then undertake that calculation (if necessary, including in it the outcomes of making different assumptions). The parties could put to him, their competing assumptions which they wished him to evaluate, and he could then model several scenarios. Such an exercise is likely to produce a range of outcomes from which the Court could select with a degree of comfort that it was reaching a figure which was truly moulded to give effect to Geoffrey's expectations. Mr Mullins’ report would not be binding upon the Court. The Court would ultimately make the decision. But it is anticipated that Mr Mullins’ report would provide a series of options.

64. [199]

    Once the Court had determined an income stream the question arises how it would be paid. It is consistent with the grant of principled relief that Cooinda should not be transferred to Geoffrey until there was clear agreement about the quantum of the income stream and it should be capitalised.

65. [200]

    Had Geoffrey’s expectations been fulfilled and had the JR Feedlot partnership continued, two other matters would have featured in their arrangement. First, Cooinda would always have been mortgaged to secure these payments to John and Carol. That was clear from as early as the Grant Thornton report. Second, there would have been flexibility in the capitalisation of some of the payments to John and Carol, because that is how they ran the JR Feedlot partnership. It may be that if they needed to purchase a house that it would have been agreed that they would receive a sum of their money in the first few years with a reduced income stream in later years. They may have wished to renovate the Kootingal property, which could perhaps have been done within a steady income stream. This aspect of the relief can be moulded and moderated to a degree in relation to their actual circumstances. This is noted in the orders below, as is the moderation in relation to how they conducted business in relation to drawings.

66. [201]

    It may also be that using these reasons, the parties can commence some practical calculations of what the price of the transfer of the Cooinda to Geoffrey is and set about reaching a consensual result.

67. [202]

    An alternative methodology. An alternative method to calculate the quantum of relief may need to be considered. The expected income stream from the three-way partnership may not be able to be satisfactorily ascertained due to uncertainty or variability in earnings, for example. If not, it may be necessary to identify a substitute measure for the plaintiff’s promise of future support to the defendants for the rest of their lives after he takes a transfer of Cooinda. But such an alternative approach, departs from the measure implied by Geoffrey’s expectation, as understood by the defendants.

68. [203]

    Such an alternative method would require the making of wider judgments which were not implied by Geoffrey’s actual expectation in committing himself to Cooinda. These might include matters such as what level of support would be appropriate to maintain John and Carol throughout their lifetimes. They might also include the effect of later events such as John’s inheritance from his late brother, that has probably diminished his financial needs. That may diminish the equity.

69. [204]

    These matters can be the subject of submissions at the relief hearing. The Court expects the parties to prepare a timetable for evidence and submissions for a relief hearing.

70. [205]

    The issues concerning the ordering of an account narrowed during the hearing. Geoffrey indicated in final submissions that if he were to be successful in his equitable estoppel claim that he does not pursue a claim for an account. He has been successful in that claim, and he is therefore not pressing for an account. But John and Carol still seek an account, and any account should not be one-sided, so Geoffrey’s claim is considered. Moreover, the new partnership cannot be effectively and fairly wound up without some accounting both ways in respect of some of the various question transactions. So, the principles as to what will justify the ordering of an account still have relevance.

71. [206]

    Applicable legal principles. The Court may order an account at any stage of proceedings: Uniform Civil Procedure Rules 2005, r 46.2. The remedy is discretionary, including as to the timing of and the way any such account might be ordered Wang v Cai [2021] NSWSC 1162. A plaintiff seeking an account must generally establish that the defendant is an accounting party and that the plaintiff is entitled to some amount from the defendant: Hancock v Reinhart (2015) 106 ACSR 207; [2015] NSWSC 646.

72. [207]

    There is no issue in this case that John and Carol on the one side and Geoffrey on the other are accounting parties in relation to the new partnership: Partnership Act 1892 s 28.

73. [208]

    Accounts may be ordered either in common form or for wilful default. Accounts in common form are concerned with restoring to a trust fund the assets which were wrongfully removed from it, in order to give effect to the trustee’s fundamental duty to hold those assets and deal with them in accordance with the terms of the trust, but such a form of account is not attempting to determine what would have happened if the trustee had not acted in breach of trust: Equity and Trusts, at [48.54]. Where it is established that the defendant is clearly an accounting party, equity may order an account even where it is unknown whether a credit sum will be found and the entitlement to be paid some uncertain amount is not to be elevated to a precondition to the exercise of the court’s jurisdiction to order an account; on the other hand, if the defendant is not clearly an accounting party, the existence of an entitlement to some amount will be a critical material fact that in the absence of which an account will not be ordered: Equity and Trusts, at [48.60].

74. [209]

    But in relation to a claim for an account on the basis of wilful default, it is necessary to establish at least one instance of wilful default for an order to be made: Meehan & Ors v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22, Giles JA observed at [14]. This requirement exists to ensure that a grant of the remedy is likely to have practical utility. When the remedy is granted in the basis of wilful default the accounting party must account not only for what has been received, but also for what it is claimed should have been received.

75. [210]

    Ordering An Account. The parties did not strongly contest that an account was required in respect of the new partnership and that a partnership accounting should take place on the basis that any unauthorised applications of funds should be restored or accounted for to the partnership. The Court was fortunate that the parties appointed a joint independent forensic accounting expert, Mr David Mullins of Ernst & Young to report on the operation of the new partnership. He was asked to (a) identify the quantum of all funds (transferred, withdrawn or taken from the new partnership), (b) calculate the additional overdraft interest in the new partnership incurred and paid to the NAB as a result of any appropriated funds, (c) consider the financial statements of the new partnership and determine if they provide a true and fair view of the distributable profit, and (d) if he formed the view they did not provide a true and fair view, then prepare a set of reconstructed accounts, calculating the extent to which the plaintiff and the defendant have withdrawn funds from the new partnership that exceeded their respective shares and identify any liability of the plaintiff and the defendants to account to the new partnership.

76. [211]

    A report from Mr Mullins dealing with these questions was available during the hearing. After the hearing concluded Mr Mullins was jointly instructed to prepare an amended report based on the additional information (bank statements) available to him. The amended Mullins report dated 12 August 2025 was ultimately received by the Court (after some inadvertent misdirection) on 13 September 2025.

77. [212]

    In the amended Mullins report Mr Mullins was not called on to determine whether the questioned transactions which each party alleged were misapplications of funds by the other party, were indeed unauthorised. These matters are determined later in this section of these reasons. Mr Mullins’ overall objective in his amended report was at a higher level of examination separate out personal expenditure from business expenditure and to identify what drawings, but he had made over time in contrast with their actual partnership profit entitlements.

78. [213]

    Mr Mullins encountered various gaps in the information provided to him. For example, he only had bank statements for the period from 2015 to 2025, rather than from the inception of the new partnership in 2009. To try and fill the gap he sought assistance from Mr Portelli. But Mr Portelli was unwilling to assist. Mr Portelli’s position was understandable. He was a potential witness who did not wish to become further embroiled in the proceedings.

79. [214]

    Mr Mullins approached his task in the following way. To overcome the inadequate evidence available to him, he used the bank statements over the time analysis period, treating them as reliable to show the expenditure of the new partnership. But because he could not rely upon the parties’ characterisation of expenses, he instead assessed the proportion of personal to business expenditure in the credit card statements as well as identifying the specific person who benefited from that expenditure, based on his understanding of the ownership and usage of each credit card. He then extrapolated that apportionment between personal business expenditure to all partnership expenditure.

80. [215]

    Mr Mullins was conscious that his assessment of personal and business expenditure may not be correct for every transaction as he was not involved in the day-to-day business of the new partnership and was cautious because he was unable within his brief to inspect all the supporting transaction documents. But in his thorough report, Mr Mullins was of the view that on the existing evidence his approach was the best available.

81. [216]

    Conclusions of the Amended Mullins report. In answer to question A - the funds taken from the new partnership by each of John and Carol and Geoffrey that were not used by them for the ordinary farming business of the new partnership (defined as “the appropriated funds”) were found by Mr Mullins to be:

    1. (1)

       Geoffrey – $286,326,

    2. (2)

       John – $1,899,033,

    3. (3)

       Carol – $832,327.

82. [217]

    In answer to question B - the additional overdraft interest that the new partnership incurred and paid to the NAB as a result of the appropriated funds being removed from partnership capital, were found by Mr Mullins to be:

    1. (1)

       Geoffrey – $2,861,

    2. (2)

       John – $10,153,

    3. (3)

       Carol – $4,741.

83. [218]

    In answer to question C – Mr Mullins found that during his analysis period (the period from FY16 to FY24, being the period in which he had complete bank statements for the overdraft account) the financial statements of the partnership do not show a true and fair view of the distributable profits of the partnership. For each of the years in the analysis period that the combined appropriated funds and interest cost are greater than the drawings of the partnership any difference between the Mullins calculation of appropriated funds and interest cost and drawings would have been (incorrectly) recorded as working expenses. That means that the incorrect recording of working expenses would imply a misstatement of distributable profit.

84. [219]

    Due to working expenses and drawings being understated, through the misallocation of expenditure to working expenses, when this should otherwise have been classified as drawings, the result is an understatement of distributable profit through the overstatement of working expenses. Mr Mullins concludes that Geoffrey’s share of the distributable profit has been diluted as result of the way the appropriated funds and interest cost to been accounted for each year. But all the partner shares of distributable profit have been diluted in the same way.

85. [220]

    In answer to question D – Mr Mullins was asked to reconstruct a set of accounts for the new partnership that calculated the extent that drawings from the partnership exceeded the shares of distributable partnership profit and identified the amounts that each of the partners was liable to account to the new partnership in relation to the appropriated funds.

86. [221]

    Mr Mullins drew the following conclusions on the reconstruction. The amount that each partner has drawn from the partnership exceeding or less than his or her respective shares is (in order of size of the adjustment required):

    1. (1)

       John – $923,490 exceeding his respective share,

    2. (2)

       Carol – $148,000 less than her respective share,

    3. (3)

       Geoffrey – $696,509 less than his respective share.

87. [222]

    The amount that each partner is liable to or owed by the new partnership based on the closing balance of partners’ funds from the reconstructed partners fund statement is the following:

    1. (1)

       John – $1,080,833 liable to repay to the partnership,

    2. (2)

       Carol – $16,007 liable to repay to the partnership,

    3. (3)

       Geoffrey – $612,169 owed by the partnership to him.

88. [223]

    The difference between these two sets of figures arises because Mr Mullins’ calculations are based on the opening balance of the partners’ funds statements in FY16 adjusted for capital injections by the partners. Given each partner had a negative opening balance at FY16 and only minimal capital injections across the analysis period, the amount they are each liable to the partnership turns out to be higher than the amount drawn exceeding their respective share. Correspondingly, the amount they are owed is lower than the amount drawn less the respective share.

89. [224]

    These calculations reveal that if a different analysis period is selected the figures will probably change. The parties appear to accept the analysis period Mr Mullins used for any calculations. There are distortions brought in by the parties’ conduct after they reignited the dispute in FY20. This may affect Mr Mullins’ final analysis.

90. [225]

    These conclusions show that substantial accounting adjustments will be needed between these parties upon the winding up of the new partnership. These reasons return to the issue of the winding up of the partnership once the claims for an account on each side are considered.

91. [226]

    Geoffrey’s accounting claim. The plaintiff now seeks an account of the new partnership’s operations under the Uniform Civil Procedure Rules 2005 (“UCPR”), rr 46.2 and 46.3. These provisions provide a general power to order an account. The Court will order an account on the basis that there are examples of wilful default by the parties. The examples of wilful default will be discussed below. But as the Court explained during the hearing, it is important to avoid a wide-ranging account or a lengthy relief hearing. Together with the findings in these reasons, it should be possible for Mr Mullins now to take supplementary instructions from the parties and produce a report that will avoid the need for a lengthy relief hearing with contested evidence.

92. [227]

    The Court accepts Geoffrey’s evidence that there are several examples of unauthorised transactions undertaken by John that are sufficient to allow the Court on ordinary principles to order an account on a wilful default basis.

93. [228]

    First, the Court is satisfied that John's purchase of the apartment in Cairns in his own name by the application of $175,000 of partnership funds was an unauthorised drawing of partnership funds without Geoffrey's prior consent.

94. [229]

    Secondly, both John and Carol used another $175,000 of partnership funds to gift to Phoebe to help fund the purchase of her home at Kootingal next door to the Kootingal property. This also occurred without John obtaining Geoffrey's prior consent. Geoffrey was unaware of this transaction taking place until it had occurred.

95. [230]

    Thirdly, John acquired several motor-vehicles in his own name using partnership funds. These included a new Mercedes Benz motor-vehicle, a Mercedes-Benz 2001 Wagon and a 2009 BMW 4WD. He did not seek Geoffrey’s consent for using these partnership funds.

96. [231]

    John and Carol do not dispute these transactions occurred. They concede that some of them occurred without Geoffrey's prior consent. These transactions were deliberate misapplications of partnership funds and warrant the ordering of an account on the wilful default basis. John did not want to ask for Geoffrey’s consent before these transactions took place, as he suspected it would not be forthcoming.

97. [232]

    Before reverting to John and Carol’s counterclaim for an account it should be noted that there is no logical connection between Geoffrey’s original claim for an account and his estoppel claim. Geoffrey’s estoppel case does not depend upon him establishing that John and Carol misapplied partnership funds. The earliest alleged misapplication of partnership funds is quite recent. The estoppel obligation arose in its final form by about 2009.

98. [233]

    John and Carol’s Accounting Claim. John and Carol bring their own claim for an account. They contend on their cross claim that: (a) funds were paid out of the partnership account for Geoffrey’s personal benefit; and (b) other partnership funds were paid to Missy without proper authorisation. John and Carol have identified the specific transactions by which partnership funds were applied for Geoffrey’s benefit, which they say were unauthorised. These total some $67,604, being five transactions between July 2021 and October 2023.

99. [234]

    John and Carol also claim a further $49,334.49 in respect of twelve transactions between January 2020 and October 2021. The period of these transactions is reflective of the loss of confidence of both sides in the administration of the partnership. Each side commenced unauthorised withdrawals and something of a “free for all” was developing with transactions on both sides, which was eventually rightly halted.

100. [235]

     The Court accepts John and Carol’s case about various questioned invoices for the sale of poddy calves and cattle generated by Geoffrey that allowed funds likely to be due to the partnership to be paid directly to Missy. Geoffrey and his family did raise poddy calves when the calves were fully grown and sold as cattle. Geoffrey emailed John, detailing the cattle being sold by number and price. But the questioned transactions are a series of invoices that Geoffrey issued between January and November 2020, using the JR feedlot ABN but directing payments be made into Missy’s bank account. There is no correspondence with John seeking authorisation in relation to these sales. The direct payment into Missy’s bank account does appear to be an authorised or reasonable payment methodology on behalf the new partnership. And it was at a time when tensions were rising between Geoffrey and John.

101. [236]

     Geoffrey’s defence is that these cattle had all been raised as poddy calves and he was entitled to the money. But that contention does not withstand scrutiny, because Geoffrey sent other clearly marked emails for cattle raised as poddy calves. The Court does not accept Geoffrey’s account that these sales related to poddy calves as the pattern of sales invoices is not in the ordinary course of business. Moreover, some of the invoices do not even refer to poddy calves but to other unrelated assets.

102. [237]

     The Scope of Any Accounting. There are only a limited number of uses of unauthorised funds. The parties will need to decide whether they want to authorise Mr Mullins to search for more unauthorised funds, or whether they wish to identify and contest this limited number of unauthorised funds. Mr Mullins is not well equipped to do the former and it is likely to risk a lengthy enquiry. The Court’s preference is for a limited further enquiry in which suspect transactions are identified by each of the parties to Mr Mullins and the other party in respect of select transactions. Then Mr Mullins, or in default the Court, can determine whether those limited transactions are unauthorised. The orders made below attempt to define such a limited scope inquiry. Most of the questioned transactions are after the 1 January 2020. It may also be possible to limit the dispute about unauthorised transactions to after that time. The Court will hear from the parties concerning that issue if necessary.

103. [238]

     Winding up the partnership. There should be a final partnership accounting. It is inevitable that the new partnership will be wound up. These proceedings should be used as a vehicle for resolving any disputes that arise out of that winding up as part of a narrow relief hearing. Looking at the big picture, the main exercise on the winding up would appear to be implementing Mr Mullin’s conclusions, which will involve crediting Geoffrey’s partnership share with the outcome of Mr Mullins findings. But that will be offset by Geoffrey having to give compensation acquiring for his parents’ two thirds share of the new partnership. Relief was claimed in Geoffrey’s case for a constructive trust over the partnership. But this presently seems unnecessary if the partnership is going to be wound up.

104. [239]

     The Partnership Asset Claim. Finally, Geoffrey also contended that the Court should declare that he has at least a one third interest in Cooinda on the basis that it is a partnership asset (prayer for relief 4). Geoffrey no longer pressed that claim because of the concessions made by the defendants that they did promise to transfer the farm to him (at least on death) and that he detrimentally relied upon those representations. This claim does not need to be considered further.

105. [240]

     The Court has traced out several ways in which it could mould relief to avoid John and Carol engaging in, and Geoffrey suffering, the consequences of unconscionable conduct. But even now it may be possible for these parties to agree upon a way that suitable relief could be moulded in this case. The Court has sought in these reasons to trace out the ways that relief can be given without yet assessing quantum issues, as was foreshadowed at the hearing.

106. [241]

     These reasons provide structure in which the parties may be able to resolve the rest of these proceedings without a full relief hearing. Saving the costs of a relief hearing is highly desirable. Conserving the parties’ capital by seeking consensus before a relief hearing is likely to save considerable legal costs.

107. [242]

     The Court will not order a mediation of the balance of the issues in these proceedings at this time unless the parties regard it as likely to produce a resolution of the proceedings. The parties have had prior mediation experience and will probably know whether that is likely. The Court will not require further mediation over the objection of any party but it nevertheless invites the parties to consider that possibility before the next directions hearing. A mediation ordered under the Civil Procedure Act 2005, s 26 even now may give this family a final opportunity to make peace with itself.

108. [243]

     For these reasons the Court makes the following orders and directions:

     1. (1)

        NOTE that for the purposes of these orders the following expressions have the following meanings:

     2. (2)

        DECLARE that the defendants hold Cooinda on constructive trust for the plaintiff upon terms that the plaintiff was and is entitled to require the defendants to transfer Cooinda to him,

     3. (3)

        ORDER that in exchange for the plaintiff providing acceptable mortgage or other security (“the Cooinda security”) to secure the future payment of the sum or sums payable to the defendants by declaration in (2) the defendants shall transfer Cooinda to the plaintiff.

     4. (4)

        NOTE that the income stream to be determined pursuant to declaration (2) may be capitalised wholly or partly to accommodate the financial needs of the parties.

     5. (5)

        DIRECT that the quantum of and the payment terms for the Cooinda security and issues in relation to the costs of the proceedings shall be determined at a relief hearing but to limit costs, unless otherwise ordered such hearing shall take place on the basis of (a) existing financial and lay evidence and the Court’s findings, and (b) supplementary instructions if required to the joint accounting expert, Mr David Mullins.

     6. (6)

        NOTE that based on the available evidence unauthorised transactions may be inferred against both the cross claimants and the cross-defendants in relation to issues raised on the cross claim.

     7. (7)

        ORDER that a limited account be provided on a wilful default basis on the cross claim in respect of the operations of the three-way partnership, in respect of identified transactions and applications of funds authored by each of the parties.

     8. (8)

        RESERVE costs.

     9. (9)

        ORDER the parties to otherwise bring in agreed short minutes of order to give effect to these reasons and to provide a program for submissions and evidence for the relief hearing.

     10. (10)

         DIRECT the parties to report to the court of the next directions hearing as to whether there is any realistic prospect for the relief and costs issues in these proceedings being resolved so the costs of a relief hearing thereby avoided.

     11. (11)

         ADJOURN the proceedings for further directions to Friday 15 May 2026 at 9:30 AM or such other date as may be convenient to the parties and may be arranged through the associate to Slattery J.