Wilcox v Chapple

1. [1]

   WARD P: Before me for concurrent hearing at first instance commencing on 12 August 2024 were two separate but related proceedings in the Equity Division, in both of which Mr Robert Wilcox (Robert) is the plaintiff.

2. [2]

   First, a proceeding commenced in 2021 (2021/59314) against (among others) Mr John Chapple, a solicitor who is the executor of the estate of Robert’s late mother (Ms Patricia Wilcox) (Equity Proceeding).

3. [3]

   Second, a proceeding commenced in 2023 (2023/168649) against Ms Lorraine Monique Wye, known as Monique, the executor of the estate of her late father, Mr Trevor Harland (Patricia’s second husband and hence step-father of both Robert and his brother Mr Benjamin Wilcox (Ben)) (Family Provision Proceeding).

4. [4]

   The parties to the respective proceedings are described in more detail below. I generally refer to the family members by their first names (or in Monique’s case the first name by which she is known) without intending any disrespect. Pursuant to order made by Kunc J on 17 June 2024, evidence in the first proceeding was taken to be evidence in the second and vice versa.

Overview

1. [5]

   Briefly, by way of overview, the subject matter of the respective proceedings is as follows.

2. [6]

   In the Equity Proceeding, Robert seeks declaratory and other relief in respect of certain rural properties located in Walgett (a property known as part Barwon Vale and a property known as Gidgerygah), which he contends are (and have been since at least 25 September 1980) held on trust for him and his brother, Ben. Robert also seeks declaratory and other relief in relation to 50% of the shares in Sanderson Estates Pty Ltd (Sanderson Estates) (the registered proprietor of the part Barwon Vale property), which he contends Ben holds on trust for him.

3. [7]

   After the close of evidence in his case but before final closing submissions, Robert sought (unsuccessfully) to expand his claim to include a claim for declaratory and other relief in relation to any property that, at the time of the death of his grandfather, the late Ian Francis Sanderson, on 17 January 2010, was held in the registered proprietorship of any of three private companies (the Sanderson Companies as identified below) which were formerly controlled by his grandfather.

4. [8]

   In the Family Provision Proceeding, Robert claims provision out of the estate of his late step-father, Trevor, who died in 2022 while the Equity Proceeding was still on foot.

5. [9]

   In summary, for the reasons which follow I have concluded that both sets of proceedings should be dismissed with costs.

Parties

1. [10]

   In the Equity Proceeding, the first defendant, as noted above, is Mr Chapple (Patricia’s executor), referred to in various of the submissions as the Executor; the second defendant is now Monique, in her capacity as administrator of Trevor’s estate (Trevor having initially been joined as the second defendant in the proceeding); the third defendant is Sanderson Estates (one of the three Sanderson Companies), which owns the part Barwon Vale property and is now in receivership; and the fourth defendant is Ben (who is now an undischarged bankrupt).

2. [11]

   One of the assets of Trevor’s estate is the property known as Gidgerygah, which was formerly owned by another of the three Sanderson Companies, I.F. Sanderson Pty Ltd (I.F. Sanderson), and was transferred to Trevor in 2018. I explain the shareholding of I.F. Sanderson (and Sanderson Estates) in due course. Suffice it here to note that Patricia bequeathed her shareholding in I.F. Sanderson to Trevor and her shareholding in Sanderson Estates to Ben under her will dated 30 June 2014. Monique (as administrator of Trevor’s estate) has no direct interest in Robert’s claim in relation to the part Barwon Vale property and shares in Sanderson Estates (but her submissions in the Equity Proceeding were adopted by Mr Chapple, who does have a direct interest in that claim as executor of Patricia’s estate). Moreover, the determination of Robert’s claim in relation to the part Barwon Vale property and the shares in Sanderson Estates is indirectly of relevance to Monique in its potential impact on Robert’s financial circumstances which are to be taken into account in his claim in the Family Provision Proceeding.

3. [12]

   The receivers of Sanderson Estates played only a minor role in the hearing (being represented by counsel, Mr Koch, and a solicitor, Ms Petersen, for certain submissions during the hearing). As already noted, Patricia’s shareholding in Sanderson Estates was left by her to Ben in her 30 June 2014 will (the 2014 Will). The receivers maintain the company’s defence to Robert’s claims.

4. [13]

   As to Ben, who was declared bankrupt on 14 September 2023, no application was made by Robert for leave to proceed against Ben following his bankruptcy. As noted above, in the Equity Proceeding Robert claims an equitable interest in 50% of the shares in Sanderson Estates. In the absence of leave to proceed against Ben, who remains an undischarged bankrupt, the relief claimed in relation to the shares in Sanderson Estates owned by Ben cannot be pursued and this claim must be dismissed. Ben’s trustees in bankruptcy have accordingly played no role in the hearing itself, although Mr Koch of Counsel made brief submissions for the trustees in bankruptcy when the matter was listed for closing oral submissions on 26 August 2024 (in relation to the notice of motion filed by Robert, seeking among other things to re-open his case). In the course of closing submissions, Ben made brief oral submissions (to the making of which no objection was taken) broadly indicating his view that there was not enough evidence to support Robert’s claim, which I understood to be accepting of his grandfather’s testamentary dispositions notwithstanding that they may well have been a disappointment to him). I note that Robert has deposed (see his 13 December 2021 affidavit at [16]) (2021 Affidavit) that he and Ben ceased being on amicable talking terms on or about 10 February 2021.

5. [14]

   Both Ben’s bankruptcy trustees and the receivers appointed to Sanderson Estates were excused from appearing in the proceedings. Accordingly, when I refer to the defendants collectively I am referring (unless otherwise indicated) only to Mr Chapple and Monique.

6. [15]

   In relation to the Family Provision Proceeding, Monique was joined as a defendant together with Raymond John Watson (Trevor’s son from a previous marriage and the then co-executor of Trevor’s estate). However, Monique was the only active defendant in that proceeding, having become the administrator of Trevor’s estate pursuant to a Grant of Administration issued on 16 May 2024 (as explained by Monique’s solicitor, Ms Rebekah Ord, in her affidavit sworn 12 August 2024 to which I refer further below). Robert was given leave on 17 June 2024 to amend the summons in the Family Provision Proceeding to reflect this change but has not done so (Ms Ord’s 12 August 2024 affidavit at [2]).

Chronology of events

1. [16]

   To set in context the issues which have arisen in the respective proceedings, I note the following by way of a brief chronology of events.

2. [17]

   Before his death, Ian Sanderson (Patricia’s father; and Robert and Ben’s grandfather) conducted a farming business on a number of properties in the Walgett area. He and his forebears had farmed the land for well over a hundred years (as Robert has emphasised in his submissions). Ian Sanderson and his wife, Linda Sanderson, resided on a property known as Allawa (sometimes spelt Allawah in the documents in evidence), which formed part of the family farming operations. They had one child, Patricia, who was born in 1943.

3. [18]

   Patricia was first married to Robert Wilcox Snr (who is now also deceased). They had two children, Robert (born in 1968) and Benjamin (known as Ben) born in 1974. The family resided on the Walgett property known as Wangrawally. Patricia and Robert Snr divorced in 1994. Patricia was then in a long term de facto relationship with Trevor from about 1997 and they married shortly before her death in 2014.

4. [19]

   As adverted to above, there were three private companies incorporated in Ian Sanderson’s lifetime (to which I have referred as the Sanderson Companies): Sanderson Estates, incorporated on 27 June 1962; Gidgerygah Pty Ltd (to which I will refer as Gidgerygah P/L so as to distinguish it from the property known as Gidgerygah), incorporated on 12 May 1965; and I.F. Sanderson, incorporated on 11 October 1967.

5. [20]

   On its incorporation in 1962, the shareholding of Sanderson Estates comprised one ordinary share held beneficially by Patricia and one B class share held beneficially by Ian Sanderson. By its Articles of Association, the B class share enjoyed the right “to be paid out of the profits of each year a fixed dividend” of 5% on the capital of the share” (£1 each) and the right to “return of that capital in priority to the ordinary shares”. The B class share had no “right to any further participation in profits or assets” and the holder of that share was not entitled in a winding up to “any sum over and above the amount of capital paid by him [or her] on such shares”. Only the B class shareholder was entitled to attend and vote at general meetings. There were restrictions on the transfer of shares in the company, the directors having the absolute discretion to refuse a transfer (see cl 27) and invitations to the public to subscribe for shares were prohibited (cl 3(c)).

6. [21]

   In June 1962, Sanderson Estates purchased the property known as part Barwon Vale (the Barwon Vale property comprises a number of titles).

7. [22]

   On its incorporation in 1967, the shareholding of I.F. Sanderson comprised two A class shares, then held by two accountants. By its Articles of Association, the A class shares enjoyed the right “to be paid out of the profits of each year a fixed dividend” of 5% on the capital of the shares” (£1 each) and the right to “return of that capital in priority to the ordinary shares”. The A class shares had no “right to any further participation in profits or assets”. Only the holders of A class shares were able to attend or vote and general meetings. On or about 23 February 1968, Patricia was allocated 10 ordinary shares each fully paid. The two A class shares were then beneficially held by Ian Sanderson and his wife, Linda respectively (see historical shareholdings recorded in the 1990 annual return for the company).

8. [23]

   According to Robert’s statement of claim (at [13]), in 1968, I.F. Sanderson purchased the property known as Gidgerygah (which also comprises a number of titles). Copies of deeds of assignment or transfers in relation to various of the properties were in the materials sought to be tendered after the close of evidence in the case but not admitted, as I explain in due course.

9. [24]

   It is not necessary to consider the shareholding of Gidgerygah P/L (save to note that it followed a similar pattern in that the shares were recorded as beneficially held). This company became the registered proprietor of Wangrawally (where Patricia and Trevor ultimately resided).

10. [25]

    On the incorporation of each of the Sanderson Companies, Ian Sanderson was a director of those companies. He remained a director of those companies at the date of his death on 17 January 2010. Patricia was also a director of Sanderson Estates from its incorporation and remained so until her death on 19 August 2014. The second director of each of the other two Sanderson Companies (Gidgerygah P/L and I.F. Sanderson) from incorporation until her death on 27 December 1992 was Ian’s wife, Linda. Patricia became a director of those companies on 14 December 1992.

11. [26]

    The 1990 annual return for Sanderson Estates, certified as correct by Ian Sanderson, disclosed that the shares of Ian Sanderson and Patricia respectively were held beneficially and that the company did not act as a trustee. The 1990 annual return for I.F. Sanderson was to similar effect. Subsequent annual returns in evidence disclose the same. Therefore, the respective company records do not support a conclusion that the shares in those companies were held on trust (whether under the terms of the 1962 Trust Deed to which I refer below or otherwise).

12. [27]

    On 3 October 1962 (i.e., after the acquisition by Sanderson Estates of part of the Barwon Vale property), a Deed was executed by Jack Irwin Dent Sanderson (Ian Sanderson’s father) “of Barwon Vale” (as settlor) and Ian Francis Sanderson “of Allawa” (as “the Trustees” [sic]) (1962 Trust Deed), which recited that the settlor was desirous of settling the sum of ten pounds to be held on the trusts and for the ends and intents and purposes as thereafter declared (1962 Trust). (In Monique’s submissions this is referred to as the £10 Trust, a characterisation with which Robert cavils but which I understand to be descriptive only, by reference to the sum settled when the trust was established.) It may be noted that, by the time the trust under this trust deed was established neither the settlor (Jack) not the Trustee (Ian) was the legal owner of the part Barwon Vale property, which had already been acquired by Sanderson Estates.

13. [28]

    By cl 1 of the 1962 Trust Deed, the trust fund (and the investments and property of every description for the time being representing the same) was to be held on trust to apply the whole or any part of the income as the Trustees may think fit to or for the maintenance, benefit, education or advancement of Patricia until she attained the age of 30; and, after she attained that age, to pay the income to her for life. On her death the trust fund was to be held on trust as to both capital and income for all or any then living children or child of the beneficiary (Patricia) who attained the age of 30 years and if more than one in equal shares.

14. [29]

    Significantly, the 1962 Trust Deed also conferred on the Trustees the absolute discretion to pay over or transfer to Patricia, on or after she attained the age of 30, the whole or any part of the trust fund or so much thereof as shall not have been applied under any of the trusts therein or in any statute, whereupon the preceding trusts would absolutely cease and determine. In those circumstances the emphasis placed by Robert’s solicitor in the current proceedings on the 1962 Trust Deed containing no power of revocation seems of little force (29/8/24; T 335.13-46), so too the submission to the effect that “the ends and intents and purposes” of the trust were to the benefit of Robert and Ben absolutely. In fact, there was an ability for the trust to be collapsed in favour of Patricia once she turned 30.

15. [30]

    The coversheet of the 1962 Trust Deed shows that it was prepared by the firm then known as Garland Seaborn & Abbott solicitors (now Garland Hawthorn Brahe).

16. [31]

    This document was only discovered by Monique’s son, Hamish, shortly before this hearing and was provided to Robert on 6 August 2024. It is fair to say that the production of this document appears to have fuelled Robert’s suspicions as to the conduct of various persons involved in the many sets of proceedings in which he has been involved over the years in relation to his grandfather’s estate and the Walgett Properties (see below). It certainly confirmed his belief (held, on his own evidence, from many years before his mother’s death) that his grandfather had established a trust for his and Ben’s benefit.

17. [32]

    It seems that in about September 1980 Patricia made an enquiry of Garland Seaborn & Abbott in relation to her grandfather’s (Jack Sanderson’s) estate (and also in relation to her father’s will). I say this because there is in evidence a letter dated 15 September 1980 from Mr Paul Duffy, then a solicitor at that firm, to Patricia, in which Mr Duffy apologised for not writing sooner but said that he had been away from work sick for a week. It is not clear what had prompted Patricia’s enquiry. Mr Duffy wrote that he had discussed Patricia’s letter (a copy of which is not in evidence) informally with Mr Bernard Bambach (who Mr Duffy, in his evidence in this Court, identified as being Ian Sanderson’s solicitor at the firm until Mr Bambach died in 1982 (14/8/24; T 223.24)), who advised that he had not heard from Patricia’s father (Ian Sanderson) recently nor was he expecting to; and that they were not able to disclose the contents of his (i.e., Ian Sanderson’s) will without his proper authority. In cross-examination, Mr Duffy agreed that Patricia had approached him (via telephone) to discuss her father’s will (14/8/24; T 226.5).

18. [33]

    The letter also stated that, in relation to Patricia’s grandfather’s estate (i.e., the estate of Jack Sanderson) and “the company”, Mr Duffy would have discussions with Ian Stephenson (Ian Sanderson’s accountant) and give Patricia a further report by the end of the month. It is not clear from this letter to what company Mr Duffy was there referring but, from the subsequent letter (see below), it can be inferred that it was Sanderson Estates.

19. [34]

    Mr Duffy then sent a letter dated 25 September 1980 to Patricia (the Duffy Letter), which assumed no little prominence in the proceedings, in which Mr Duffy referred to a discussion he had had with “Ian Stevenson” since the previous letter and advised, relevantly, that:

20. [35]

    This “very broad outline of the trust deed” in the Duffy Letter is thus consistent with the terms of the recently discovered 1962 Trust Deed (though noting that only the sum of £10 was settled on that trust at its inception). The letter does not make clear how it was thought that Patricia’s “interests” in Sanderson Estates were covered “through trusts” (and it is likely that the use of the plural was in error since there is only reference to “the trust” and “the trust deed” in the singular). Patricia was at this stage the beneficial owner of one ordinary share of the company (according to the historical company records). I note that Mr Duffy’s evidence in cross-examination was that he had no involvement in, or familiarity with, Ian Sanderson’s property affairs until after the death of Mr Bambach in about 1982 (14/8/24; T 223.23-31), and Mr Duffy explained that the comments he made in the Duffy Letter were as a result of what Mr Stephenson told him (14/8/24; T 225.11). There is therefore nothing to shed light on what Mr Stephenson knew of the trust arrangement(s) at the time of the conversation with Mr Duffy which then made its way into the Duffy Letter.

21. [36]

    Pausing here, Robert has variously alleged that Ian Sanderson was the trustee of the alleged trusts (in his initial pleading) and then (in his amended pleading current at the time of the hearing before me) that Sanderson Estates was the trustee of the trust that held part Barwon Vale and that I.F. Sanderson was the trustee of the trust that held Gidgerygah. In closing submissions (presumably having regard to the discovery of the 1962 Trust Deed), it appears that Robert has reverted to a contention that Ian Sanderson was the trustee of the trust (or trusts) under which he claims an interest to the part Barwon Vale and Gidgerygah properties (though there was some acknowledgment as to the “mystery” as to the “connectivity” of the assets of the Sanderson Companies to the alleged trust (or perhaps trusts) (29/8/24; T 312.9).

22. [37]

    I also note that Mr Duffy gave evidence that he telephoned the accountant’s office in 2010 when Ian Sanderson died and was informed that the old trusts had all been wound up long ago (affidavit sworn 3 May 2022 of Mr Duffy at [5]) but in cross-examination there was some doubt as to the reliability of his recollection of that conversation (see further below).

23. [38]

    Robert has deposed that he commenced working full time at the Walgett Properties in 1986 aged 19, and that he worked full time on the Walgett Properties between 1986 and 1993. In oral submissions, it was said more than once that Robert had worked on the Walgett Properties for his grandfather for 45 years or for the whole of his childhood but it was accepted that there was an element of exaggeration in that proposition (a 45 year time span would have dated back to when Robert was born since he was 46 years old at the time of Trevor’s death in 2022) (29/8/24; T 337.25-50). There was conflicting evidence as to Robert’s work on the Walgett Properties over the years.

24. [39]

    It is not disputed that from 1981 to 1984 Robert was a boarder at The Kings School in Sydney. His evidence is that he left at the end of year 10. Robert was then enrolled from 1985 to 1986 at Longreach Pastoral College. After his time in Longreach, Robert undertook various vocational courses and was thus not living full time on the Walgett Properties over the years that he was studying or undertaking vocational courses. Indeed, Robert’s evidence in the 2010 Proceeding before Pembroke J was that he was not on his grandfather’s properties on a full time basis after 1992 (8/10/12; T 35.1-14).

25. [40]

    Robert has deposed to various conversations with his grandfather in relation to the family properties, to the effect that the properties were in a trust for Robert and Ben; and that “all this country” would be his one day (see, for example, [24], [31]-[33], [40], [46], [51] of Robert’s 2021 Affidavit). I consider his evidence in this respect in due course. Robert has also deposed to conversations with his mother, Patricia, in which he says that there was reference to a trust for the boys (see, for example, at [36], [45] of Robert’s 2021 Affidavit). Again, I consider that evidence in due course.

26. [41]

    On 7 October 1987, Ian Sanderson made a will (the 1987 Will) in which he appointed his daughter, Patricia, and his accountant, Ian Stephenson, as his executors and trustees. Under this will, Ian Sanderson bequeathed all his real and personal estate to his trustees to invest and pay the income to his wife, Linda, during her lifetime and after her death to his daughter Patricia for her sole use and benefit absolutely (but with a gift over if she predeceased her parents to his grandsons (Robert and Ben) if they had then or thereafter attained 25 years) in equal shares). The 1987 Will did not identify that any of the farming property was held on trust by the testator. Linda made a will at the same time in similar terms to that of her husband.

27. [42]

    Linda Sanderson died on 27 December 1992.

28. [43]

    Patricia and Robert Snr separated in January 1993 and their marriage was dissolved in April 1994.

29. [44]

    It appears that, at least as at 25 March 1996, there was an issue as between the former spouses (Patricia and Robert Snr) as to whether the shares held by Patricia in the Sanderson Companies had any value (having regard to what is said in an ex tempore judgment of Cohen J in the Family Court of that date, referred to by Robert in his 2021 Affidavit at [44]). However, without knowing the basis on which it was apparently asserted by “Ian Stevenson”, in an affidavit filed in March 1996 to which Cohen J there referred, that the shares were worthless, little weight can be placed on this assertion. At that stage, of course, Patricia did not hold a controlling share in any of the Sanderson Companies (the voting shares being held by Ian Sanderson) and hence one could expect that there might well be scope for debate as to the then value of Patricia’s shares. It certainly could not be assumed that the shares would be valued simply by reference to the value of the properties then held by the respective companies.

30. [45]

    Without expert evidence one would not know what discount, if any, would have been applied to Patricia’s holding in family companies at a time when the controlling shareholder was the family patriarch and still alive. Hence, I do not accept the argument now put for Robert that this supports a conclusion that the relevant properties were held by the Sanderson Companies in trust or that the shares in those companies were held in trust. In any event, there was no evidence as to this in the present proceedings beyond evidence of what was apparently asserted in the earlier family law proceeding. Similarly, although Monique says in her submissions that Patricia included the shares as hers in the family law proceeding with Robert Snr 1996, in respect of which proceeding Patricia was supported by Ian Sanderson, there is insufficient information as to those proceedings to draw any conclusion in relation to that.

31. [46]

    After their parents’ separation, Robert lived for a time with Patricia on Wangrawally. There is a dispute as to the length of time that Robert resided with his mother and Trevor over the years, as opposed to with his grandfather, Ian Sanderson (an issue relevant to Trevor’s claim that he was dependent on Trevor and a member of his household at some time so as to be eligible to claim provision out of his estate), as discussed in due course.

32. [47]

    The farming business was conducted (for a number of years) through a partnership between Ian Sanderson and Patricia (known as the Wangrawally Pastoral Co). Patricia’s 2014 Will makes reference to various partnership businesses and assets. It is not necessary to consider those in any detail.

33. [48]

    Patricia and Trevor began a relationship at around the time of the breakdown of Patricia’s marriage to Robert Snr. According to Trevor’s affidavit sworn 19 November 2020 – Ex 3), his relationship with Patricia began in approximately 1993 when he was working for Ian Sanderson and living on Gidgerygah. Trevor deposed that he and Patricia started living together at Wangrawally in about late 1996 or 1997. Monique’s evidence is to similar effect.

34. [49]

    Although it was put to Robert in cross-examination that he blamed the relationship or Trevor for the breakdown of his parents’ marriage, his somewhat dismissive response was that it “takes two to tango”) (13/8/24; T 154.30). However, it is fair to say that Robert has not been reticent in casting doubt on the genuineness of the couple’s relationship (see for example at [45] of his 2021 Affidavit in which he describes Patricia as living with Trevor and his “same sex partner” – an allegation not contained in the affidavit sworn by Robert in 2011 prior to Trevor’s death when he could have disputed it). This quite obviously remained Robert’s view when cross-examined (12/8/24; T 69.50; 13/8/24; T 157; T 160); including making snide comments as to Patricia being Trevor’s “golden goose”. Nor, as I explain in due course, has Robert shied away from making serious allegations on Facebook posts as to the character of both Patricia and Trevor after their death (suggesting that if they were still alive they would be in gaol), although in re-examination before me (when invited to say something about this) he said that this was a mistake to do and he would not repeat that conduct (15/8/24; T 281.18).

35. [50]

    Robert’s evidence is that in around 2000 he was working in the Northern Territory (having been “sent there” by Ian Sanderson to look for store cattle) and that in December 2001 he returned from the Northern Territory and after his return lived with Ian Sanderson at Allawa for “well over a year” (see [45], [47] of his 2021 Affidavit). Robert relies on his residence at Allawa over this time for his assertion that Ian Sanderson did not execute the Power of Attorney and Will in 2002 – see below. Robert was challenged on this evidence in cross-examination to which I refer in due course.

36. [51]

    On 17 April 2002, Ian Sanderson executed a General Power of Attorney, appointing Patricia as his attorney. On that document, Mr Duffy certified that he had explained the effect of the General Power of Attorney to the grantor (Ian Sanderson) and that he had attested the execution of the Power of Attorney by the grantor. Robert disputes the validity of this document – see [48] of his 2021 Affidavit, asserting that Mr Sanderson “did not leave the Properties for an extended period of time in 2002 that would’ve allowed him to travel to Sydney”.

37. [52]

    In 2002, Ian Sanderson made a new will (the 2002 Will) appointing Patricia as his sole executor and trustee (with Mr Duffy to be appointed as his executor and trustee if the appointment of Patricia failed). By the 2002 Will, Ian Sanderson left his estate to his trustee to pay all debts, testamentary expenses and the like and then to hold the balance absolutely for Patricia (and if she predeceased him, Robert and Ben in equal shares).

38. [53]

    The 2002 Will dated 21 August 2002 was, on its face, attested by Anne and Cecil Davie, retirees whose address was recorded on the 2002 Will as being in Tamworth. The attestation clause in terms attested to the 2002 Will having been signed by the testator in the presence of both the witnesses and attested by them in the presence of the testator and each other (though not as to where the 2002 Will was executed).

39. [54]

    Robert also disputes the validity of the 2002 Will and has gone to great lengths to procure evidence from Mr Davie to the effect that he did not witness the execution of that will – see further below.

40. [55]

    Ian Sanderson died on 17 January 2010. As noted above, pursuant to his 2002 Will, Ian Sanderson’s estate was left to Patricia, who was appointed as his executor and trustee.

41. [56]

    Patricia was granted probate of the 2002 Will on 17 October 2011. In the inventory of property of the deceased attested to by Patricia in her application for a grant of probate, Patricia listed part Barwon Vale and Allawah [sic] (as well as other real estate) as being solely owned by the deceased; attributed a value of $1 to the deceased’s shares in Sanderson Estates and I.F. Sanderson; and stated that there was no property owned by the deceased on trust for another.

42. [57]

    Ian Sanderson’s death precipitated the commencement of what can only be described as an ongoing litigious saga. This began when Robert and Ben instituted proceedings in the Supreme Court (2010/426690) (the 2010 Proceeding) against Patricia (as executor of her father’s estate) seeking declaratory relief to the effect that they were entitled to the full beneficial interest in the Property (defined at [10] of the statement of claim as all of the land comprising the family farm and known as Allawa, Gidgerygah, Barwon Vale and Wangrawally; and the business Wangrawally Pastoral Co and the company Gidgerygah P/L (as well as all stock, plant and equipment related to the pastoral enterprise). A declaration was also sought that the Property stood charged in the plaintiffs’ favour to the extent of its value as at the date of death and an order transferring the Property into their names as tenants in common in equal shares, free from encumbrance.

43. [58]

    The pleading in the 2010 Proceeding (relevant in considering the issue and Anshun estoppel arguments here raised by way of defence to the present claims) alleged: an oral promise “[f]or the entire duration of their lives” by the deceased that all of the property comprising the family farm and associated stock and equipment would be devised by the deceased’s will to the plaintiffs without encumbrance ([7]; [9]); that, in consideration of the promise, the plaintiffs worked on the Property for many years without any or adequate remuneration and in reliance on the promise and acted to their detriment in pursuing vocational and other training aimed directly at taking over ownership and management of the pastoral land and enterprise ([8]); and that the deceased was bound by that promise ([10]). The allegation that there was a promise, binding or otherwise, to devise the Property by will is inconsistent with an assertion that the Property was already impressed by a trust before the deceased’s death (although Robert did not seem to accept this in cross-examination). In any event, there was the further allegation in the pleading that, by such an agreement, the deceased had constituted himself a trustee of the Property (at [18]), which may overcome that inconsistency.

44. [59]

    Further or in the alternative, it was alleged that the promises made by the deceased induced the plaintiffs to enter into an agreement with the deceased whereby each of the plaintiffs worked on the Property for little or no remuneration and set about various “vocational educations” designed to assist in the promised ownership of the Property ([11]).

45. [60]

    In the alternative, it was alleged that the deceased was bound by an agreement to make provision in his will for a gift in favour of the plaintiffs of all of the land, stock, plant and equipment, free of any encumbrance ([12]).

46. [61]

    Further or in the alternative, it was alleged that the deceased “in making the promises and agreement outlined above” represented that it was his intention to make his will in such a way as to ensure that the Property was left to the plaintiffs unencumbered ([13]).

47. [62]

    At [14], it was alleged that the deceased was estopped from acting in a manner inconsistent with the representations made to the plaintiffs; at [15]-[16] that the deceased was in breach of his agreement; and at [17] that the plaintiffs suffered damage by being deprived of the value of the Property and of the opportunity to have the benefit of the Property.

48. [63]

    At [18], as adverted to above, it was alleged that, by agreeing for valuable consideration to leave the Property by will, the deceased constituted himself a trustee of the Property and impressed the Property with a trust in favour of the plaintiffs; and, further, at [19] that by reason of the representations and estoppel arising by reason of the reliance and change of position by the plaintiffs, the Property stood charged in favour of the plaintiffs to the extent of its value as at the date of death.

49. [64]

    In the alternative, Robert and Ben claimed provision out of their grandfather’s estate, alleging (among other things) that the deceased had a net worth of approximately $15m) ([23]).

50. [65]

    Patricia, by her verified defence, denied or otherwise put in issue most of the allegations made in the claim, including making a positive denial of “any trust as alleged, that the deceased was a trustee as alleged, or that there was any valuable consideration, or consideration at all, as alleged” (see at [18]).

51. [66]

    Robert swore an affidavit on 4 July 2011 (the 2011 Affidavit) which was filed in the 2010 Proceeding. That affidavit was exhibited to Robert’s 2021 Affidavit in the present proceedings and is thus in evidence before me. As will be considered in due course, there are a number of conversations referred to in the more recent (2021) affidavit that did not appear in the 2011 Affidavit (a matter to which Robert was taken, and in my opinion unable satisfactorily to explain, in cross-examination). So, for example, the conversations to which he deposes in his 2021 Affidavit at [30], [40], [45], [51], [54] but which are not included in the 2011 Affidavit. It is worth here noting that those more recently recounted conversations, with persons now deceased, raise matters that it may (and at least in the case of Patricia and Robert can confidently) be expected would have been challenged had the relevant persons still been alive when those conversations first appeared.

52. [67]

    Significantly, at [61] of his 2021 Affidavit, Robert deposed that:

53. [68]

    From the above, it can be seen that, on Robert’s own evidence, Robert was aware of matters that he contended gave rise to a trust at least as at the time his 2011 Affidavit was prepared for the purpose of the 2010 Proceeding (since otherwise the conversation to which he deposes with his then solicitor as to not mentioning “the trusts” would make no sense); and, indeed, on his evidence he knew from the time of the earlier conversations with his grandfather about the existence of a trust of some kind (though Robert insists this was meaningless to him at that time).

54. [69]

    Robert’s evidence in cross-examination was inconsistent as to which solicitor (Robert Macauley, or his assistant Ben Andrews) gave him the advice not to “mention the trusts” but that does not gainsay the fact that, if the reason for the non-inclusion in his 2011 Affidavit of reference to “the trusts” was due to legal advice received to that effect, then Robert (or someone in his presence, such as his father who he said at one stage had been in the conference) must have said something at that stage about “the trusts” (or else the advice not to mention them would make no logical sense). See, for example, the cross-examination at 13/8/24; T 35 where, when shown the draft 2010 statement prepared by Ben Andrews after a conference with him in which there was no reference to conversations about a trust, Robert says that “probably we were told to take it out”. See also the evidence in cross-examination at 13/8/24; T 109.1 where Robert says that counsel gave him that advice as well (Mr Glissan QC). Robert also said that the advice was that “unless you had written evidence you couldn’t plead it”.)

55. [70]

    There is some inconsistency between that evidence and the evidence given at 12/8/24; T 54.18-26; 13/8/24; T 118 as to Brenden Miller, a solicitor who acted for Robert in the later proceeding involving his mother’s estate, being the first person who gave Robert any “formal” advice about a trust and to him being “the first bloke that told me, you know, trust don’t mean anything” but perhaps that is explicable by the qualification as to “formal” advice and the different content of the advice.

56. [71]

    An amended statement of claim was filed on 8 November 2011. In that pleading, the nature of the claim was identified as one of equitable estoppel, constructive trust, and a claim under the Succession Act 2006 (NSW) (Succession Act). There was some amendment to the particulars of the trust claim, and some additional pleaded allegations as to the alteration by the plaintiffs of their position in reliance on the promise, representations and encouragement by the deceased (see for example [8A]) but in essence the structure of the trust claim remained as outlined above. (Insofar as there was an amended pleading permitted in the 2010 Proceeding, it cannot be suggested that there was no possibility to amend the pleading at that time to include the trust allegations now made.)

57. [72]

    An amended defence, again positively denying the substantive allegations, was filed by Patricia. Patricia then swore an affidavit on 18 January 2012, in which she disputed a number of the assertions made in Robert’s affidavit.

58. [73]

    The 2010 Proceeding was heard by Pembroke J in October 2012. In his first substantive judgment in the matter (Wilcox v Wilcox [2012] NSWSC 1138) (Wilcox (No 1)), delivered on 12 October 2012, his Honour identified three legal issues as arising for determination ([6]): first, whether there was a legally binding agreement between the testator (Ian Sanderson) and the plaintiffs; second, whether the testator made clear and unequivocal representations to the plaintiffs as to their inheritance from him, in reliance on which they acted to their detriment so as to give rise to an estoppel; and, third, whether the plaintiffs were entitled to a family provision order pursuant to s 59 of the Succession Act. Although expressed in that way, the conclusions reached on those first two issues were dispositive of the claims made as to the existence of a trust in respect of the Properties (and the answer to the third was predicated at least in part on that issue).

59. [74]

    Pembroke J concluded that the answer to the first question (i.e., as to the alleged agreement) was “No”, noting that senior counsel for the plaintiffs did not press that submission. His Honour concluded that the second question (i.e., as to representations) was also to be answered in the negative, on the basis that the evidence of the supposed representations was not sufficiently clear or convincing; and that the statements made by the testator were no more than expressions of present expectation or prediction, not promises and that a reasonable person in the position of the plaintiffs would not have understood them otherwise.

60. [75]

    His Honour had no hesitation in saying that each of the plaintiffs was an unimpressive witness on whose evidence he did not feel it prudent to act unless it was corroborated or contrary to their interest ([11]). Relevantly, his Honour described the plaintiffs as defensive, rather than frank and open; and fixated on their supposed right to their grandfather’s agricultural properties. His Honour said that both sought to use the opportunity of giving evidence to advance their perceived interests in the litigation rather than by giving a fair account of the relevant facts. As to Robert, his Honour said that he was particularly vindictive towards his mother and her partner (i.e., Trevor). (As will be seen in due course, it appears that little has changed in Robert’s case in this regard.)

61. [76]

    However, his Honour concluded that the claim for provision was made good. In so doing, his Honour was satisfied that the plaintiffs were eligible persons within the meaning of s 57(1)(e), saying that during their lives they were at least partly dependent on the testator, the family being in a practical sense “captive” to him ([15]). His Honour was also satisfied that there were “factors warranting” the making of the application, in Robert’s case he being penurious (Robert having said in his evidence that he was living in a garage and sleeping in a swag). His Honour noted that Robert was then 43 years of age; and said that he had not lived on the Walgett Properties since 1992 ([21]) (a finding contrary to Robert’s evidence in the present proceedings but consistent with Robert’s evidence in the 2010 Proceeding that he had not lived on the property full-time since 1992 “but I came and went quite often”) (see 8/10/12; T 35.1-14 before Pembroke J; 12/8/24, T 74.48-75.14 in the present proceedings).

62. [77]

    His Honour considered that he was not able on the evidence before him to make an informed decision as to the provision to be made for the plaintiffs (saying at [28] that there was inadequate financial information). His Honour made directions for a further hearing to address the questions left unanswered in his first judgment.

63. [78]

    The second hearing was conducted before Pembroke J in February 2014, with judgment delivered on 21 February 2014 (Wilcox v Wilcox (No 2) [2014] NSWSC 88 (Wilcox (No 2)). In the course of the second hearing, Ben reached a settlement of his family provision claim. Therefore, the second judgment by Pembroke J dealt only with Robert’s family provision claim.

64. [79]

    His Honour said that, to facilitate the determination of the question of relief, to limit costs and to attempt to ensure the just, quick and cheap resolution of the proceedings (see at [6]), he had appointed a court expert to express an opinion as to whether any particular division of the pastoral holdings would be economically feasible and workable, bearing in mind: the production capacity, income potential or other features of each of the respective holdings; the objective of ensuring that any such divided holdings be independently viable; and the desirability of attempting to ensure that Patricia’s quality of life was not diminished (see at [7]). However, as it turned out, his Honour did not undertake any detailed analysis of that expert report, saying that the issue of division of the land into economically feasible parcels no longer arose and that it was complicated by the fact that the estate by itself did not own each parcel of land ([14]).

65. [80]

    In Wilcox (No 2) (at [22]), Pembroke J set out the ownership of the various parcels of land at Walgett, including that Wangrawally was owned by Gidgerygah P/L; that Barwon Vale was owned by Patricia and Sanderson Estates; and that the land known as Gidgerygah was owned by I.F. Sanderson. His Honour went on to note the ownership of the shares in the Sanderson Companies at [23]. His Honour emphasised that he was only authorised to make an order for provision out of the estate of the deceased (i.e., Ian Sanderson). (Thus, his Honour’s order for provision, though ultimately set aside, was predicated on Ian Sanderson not holding legal or beneficial ownership of any of the relevant properties.)

66. [81]

    After considering the position of Robert (from [28]), his Honour concluded that the appropriate order in favour of Robert was to make provision in the sum of $387,000 in favour of Robert ($107,000 to discharge a debt owed to the Tax Office, and $280,000 spread out as seven annual instalments of $40,000 to constitute a “modest, yet secure, safety net” ([35])); and ordered that Robert’s costs be paid out of the estate.

67. [82]

    His Honour published a separate costs judgment on 17 April 2014 – see Wilcox v Wilcox (No 3) (Supreme Court (NSW), Pembroke J, 17 April 2014, unreported).

68. [83]

    Patricia then brought an appeal from the orders made by Pembroke J on 21 February 2014 and 17 April 2014 (the latter concerning costs), filing her notice of appeal on 20 May 2014. Robert was served with the notice of appeal but did not file an appearance; although he attended the hearing and made submissions (see Chapple v Wilcox [2014] NSWCA 392 (Chapple v Wilcox) per Barrett JA at [36]).

69. [84]

    Patricia made two wills after the 2010 Proceeding was brought against her by her sons. In both those wills (made in 2012 and 2014, respectively) Patricia treated the various Walgett Properties as her own (see, for example, cll 4 and 5 of the 2002 Will; cl 3 of the 2014 Will, although in the latter there is an express recognition in cl 4 that certain of the properties were registered in the names of particular Sanderson companies).

70. [85]

    One might well infer that the lack of provision for Ben and Robert in the 2012 Will reflected Patricia’s attitude to the bringing of the litigation against her by them in relation to her father’s estate. That is made express in the 2014 Will (see cl 11) under which Robert is given a $250,000 legacy. It might also be inferred that the limited provision for Robert reflected the state of the relationship between them at the time (particularly since Patricia made more generous provision in the 2014 Will for Ben).

71. [86]

    Patricia and Trevor married on 10 August 2014. Patricia clearly knew by then that she was dying (as Trevor’s affidavit makes clear). Trevor deposed that it was Patricia’s suggestion that they marry. They had been living together in a de facto relationship since at least 1997 ([32] of Trevor’s affidavit sworn 19 November 2020). Given their long term relationship, the decision to marry before Patricia’s imminent death seems to me to be unremarkable. Robert, nevertheless, in his evidence in the present proceeding and in communications with others which were in evidence before me, seemed to suggest something sinister behind the marriage occurring only shortly before Patricia entered into palliative care and then died (see, for example, 13/8/24; T 157.32-33 where he said “they got married on her deathbed, and then they took her off to Dubbo and morphined her out”). I see no basis for any suspicion of the kind Robert is there raising as to the motivation behind the marriage.

72. [87]

    Patricia died of pancreatic cancer on 19 August 2014. On 12 September 2014, the 2014 Will was admitted to probate. The inventory of property filed on that application valued Patricia’s net estate at around $12-13m (including several properties worth $16m and liabilities of around $3m). The 2014 Will left several of the properties, businesses, and farming equipment to Trevor; one specific property (Barwon Vale) and shares (Sanderson Estates) to Ben; pecuniary legacies of $250,000 each to Robert and a long-standing employee (Pharron “Aussie” Wayne Hatton); and the balance to Trevor and Ben equally.

73. [88]

    As adverted to above, in cl 11 of the 2014 Will, Patricia explained that she had provided for Robert as she had in the will “for a number of reasons including the commencement by him of Supreme Court proceedings against me in December 2010 following the death of my late father”.

74. [89]

    After her death, an order was made on 22 September 2014 substituting Patricia’s executor, Mr Chapple, as the appellant in the appeal proceeding brought against Pembroke J’s decisions.

75. [90]

    The Court of Appeal, on 18 November 2014, upheld the appeal (Basten, Barrett and Gleeson JJA) (Chapple v Wilcox [2014] NSWCA 392). The Court of Appeal concluded that, in light of the factual circumstances of the case, there was no basis for the primary judge’s view that community standards and expectations required and countenanced the making of any provision for Robert out of his grandfather’s estate such that a Court could be justified in interfering with the testator’s clearly stated testamentary wishes.

76. [91]

    The relevant factual circumstances to which reference was there made were that: Robert had the training and skills to earn $100,000 per year but preferred instead to make a subsistence living by operating a tree lopping business; Robert’s father had recently won $1.3m gambling and expressed some willingness to give him some financial support; there had been limited contact between Robert and his grandfather since early 1993; Patricia, the deceased’s only child, had devoted a large part of her life to his pastoral business of which she was a part owner, having assisted her father in both business and personal matters, assumed sole responsibility for him in his old age and was a caring and dutiful daughter; the pastoral business was “borderline viable” and beset by the usual problems that attend such businesses, such as drought and unpredictability, and therefore there was no practical scope to raise money by selling off part of the land and the limited borrowing capacity that did exist needed to be devoted to the financial requirements of the enterprise itself (see [95] of Chapple v Wilcox [2014] NSWCA 392).

77. [92]

    The Court thus allowed the appeal (rejecting Robert’s application for provision) with costs.

78. [93]

    After Patricia’s death, Robert made a family provision claim against her estate by summons filed on 18 August 2015. Robert’s solicitor in that proceeding was Mr Brenden Miller of what was by then known as Garland Hawthorn Brahe (formerly Garland Seaborn and Abbott). Robert has deposed that Mr Miller called “out of the blue” to suggest he bring such a claim. Given Robert’s involvement in the 2010 Proceeding and subsequent appeal, one might have thought Robert would have been well aware of the ability to make a claim for provision (and his subsequent conduct suggests he would have needed little or no encouragement to do so but be that as it may).

79. [94]

    Robert has deposed that he told Mr Miller that he thought the Power of Attorney and 2002 Will of his grandfather were false but that Mr Miller informed him that it would be too difficult to prove such assertions “and so those claims were not made in the [family provision proceeding]”.

80. [95]

    On 23 October 2015, the matter was referred to mediation. The mediation, at which Ben and his solicitor were also present, was conducted by a former registrar (the late Graham Berecry) on 20 November 2015. The mediation resulted in a settlement, the substance of which was that, in addition to the legacy of $250,000, Robert would receive a sum of $850,000 and the estate would not pursue against him the benefit of costs orders (worth about $275,000) that had been made in the earlier proceedings concerning Ian Sanderson’s estate (see Wilcox v Chapple [2015] NSWSC 2154 (Wilcox (No 4) at [4]). The burden of the provision was to be borne equally by the two shares of the residuary estate. The handwritten terms of settlement were in evidence.

81. [96]

    Mr Chapple sought judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) (Trustee Act) as to whether he would be justified in consenting to orders to be made in the substantive proceedings to the effect that Robert would receive, by way of provision out of the estate made under the 2014 Will an additional legacy of $850,000, such legacy to be borne by the shares of residue equally and for the executor’s costs of and incidental to the motion for judicial advice to be paid out of the estate on an indemnity basis. Ben had, on Mr Chapple’s application, been joined as a party to the application for judicial advice and, though opposing the giving of judicial advice, had filed a submitting appearance.

82. [97]

    Brereton J, as his Honour then was, made orders to the effect that Mr Chapple would be justified in consenting to the proposed settlement (see Wilcox (No 4) handed down on 18 December 2015). His Honour then made orders by consent giving effect to the settlement that had been reached at the mediation. The last of the consent orders made on 18 December 2015 was:

83. [98]

    Thus, Robert ultimately obtained a legacy of some $1.1m (as well as the forgiveness of costs debts) out of Patricia’s estate.

84. [99]

    A formal Deed of Settlement and Release (Settlement Deed) was signed by Robert and Mr Chapple on 18 December 2015. In the present proceedings, Robert gave evidence in cross-examination that he signed the Settlement Deed “under duress” and that “something very shady happened, very dodgy and I wasn’t aware of it (see 13/8/24; T 127.39; T 130.9). Robert’s allegation of duress appears to have been that, at the mediation, “I asked for one of the properties and between Mr Miller and Mr Chapple it was no way and that’s where I got given the 1.1 and was threatened if I didn’t take it I would go bankrupt and go to prison. That’s the duress part” (13/8/24; T 152.5). However, no claim is made in the pleading in this Court to set aside the Deed of Settlement, nor was there any suggestion in Robert’s affidavit evidence that he was in a situation of duress when he signed it.

85. [100]

    That settlement did not, however, bring an end to the litigation between Robert and Mr Chapple (see below).

86. [101]

    Robert has deposed that, in about August 2016, Ben sent to him photographs of the two Duffy letters referred to above (which Ben told him Ben’s then girlfriend, Eliza Showell, had found under the lining of the bottom of Patricia’s chest of drawers at Barwon Vale) (see [93] of the 2021 Affidavit). It will be recalled that from at least around the early to mid 1990s Patricia lived at Wangrawally, so one would assume anything left in a chest of drawers at Barwon Vale had been there for some time, assuming it was indeed left there by Patricia – as to which there is no evidence.) Robert has deposed that he said to Ben words to the effect “just as I thought, the property is in a trust” (indicating that by then Robert was well aware of the concept of a trust) and that, on 19 September 2016, he provided the letters to his solicitor, Mr Miller. Robert also deposed that Mr Miller told him that even if this meant that there was a trust and that there was a false will (the latter not obviously arising from the former), it was too late and he was out of time (see at [95]).

87. [102]

    On 8 February 2018, Gidgerygah P/L was deregistered. Before its deregistration, the property registered in its name (Wangrawally) was transferred to Trevor.

88. [103]

    On 3 July 2018, Robert made an application to a Registrar of the Court for access to the probate file relating to Ian Sanderson’s 2002 Will, seeking to inspect the original version of that Will. When that application was refused, Robert brought an application by motion filed on 8 October 2018 for review of the Registrar’s decision. That application came before me in the applications list in the Equity Division (Wilcox v Wilcox [2019] NSWSC 306).

89. [104]

    Joined as parties to the application were Mr Chapple (as executor of Patricia’s estate) and Mr Duffy (the solicitor who prepared the executor’s affidavit in support of the application for probate of the 2022 Will in 2010), as I explained in my judgment at [3]. When the application was made orally, it was not limited to access to the original 2002 Will (as the application to the Registrar had been) but was for access to the probate file more generally (see at [2]).

90. [105]

    The purpose of the application for inspection of the probate file (as I was informed by Robert’s then “McKenzie friend”, Mr Danis) related to Robert’s suspicion or belief that there was inappropriate non-disclosure in that affidavit (or affidavits) of certain “testamentary” trusts.

91. [106]

    I saw no error in the decision by the Registrar not to permit access to the original 2002 Will in circumstances where no reason had been put forward by Robert (a non-party to the probate proceedings) for such access and hence dismissed the application for review of the Registrar’s decision. I then dealt with the new (oral) application to review the whole of the file and I granted limited access in what I expressed to be the (in hindsight with prescience) “perhaps forlorn” hope of quelling any misconception as to the affidavit(s) filed in support of that application. I ordered that Robert be permitted to view the affidavit filed in support of the application for probate of that 2002 Will and the 2002 Will itself. I subsequently (after permitting brief written submissions as to why such an order should not be made) ordered that Robert should pay the costs of both respondents to the application on an indemnity basis (see Wilcox (No 2) at [43]) and ordered that access (to the limited extent granted) be conditional on the costs being paid or otherwise secured in advance.

92. [107]

    Meanwhile, in May 2018, as the administration of Patricia’s estate was coming to a close, Mr Chapple requested that, before he release the funds (around $180,000) held on Ben’s behalf, Ben lodge the necessary documents to remove Trevor as a director of Sanderson Estates (as Ben, pursuant to Patricia’s 2014 Will, held all shares in the company)

93. [108]

    In April 2019, Ben filed a statement of claim against Mr Chapple and Trevor, seeking damages for an alleged breach of contract by Patricia in not writing her 2014 Will pursuant to their settlement agreement, an order that Mr Chapple be removed as executor (as I understand it, based on assertions as to the sale of property at an undervalue) and orders that an account of the estate be taken and any appropriate payments be made to Ben (see [15] of Wilcox v Chapple [2020] NSWSC 1859) (the 2020 judgment).

94. [109]

    Ben filed an amended statement of claim in October 2019, alleging that what he received under the 2014 Will was less than what was agreed in the draft will set out in the settlement agreement, and that Mr Chapple had sold properties of the estate at a substantial undervalue (see [17] of the 2020 judgment).

95. [110]

    Mr Chapple sought judicial advice pursuant to s 63 of the Trustee Act as to: whether he was justified in defending the claims in the proceeding, and whether he was justified in having recourse to the property of the estate to pay his reasonable costs of so defending those claims. Ben opposed advice being given.

96. [111]

    On 16 December 2020, Rees J gave judicial advice that Mr Chapple was justified in both defending the claims and in having recourse to the property of the estate to pay his reasonable costs of so doing (the 2020 judgment at [32]).

97. [112]

    In July 2021, Robb J heard a notice of motion filed by Ben, seeking leave to file and serve a further amended statement of claim in his 2019 proceeding. The application was consented to by Trevor but resisted by Mr Chapple. Robb J set out reasons as to his consideration of the proposed amendments and gave Ben opportunity to revise the draft further amended statement of claim to “accommodate the conclusions reached in these reasons” without making any formal orders (Wilcox v Chapple [2021] NSWSC 860 at [69]).

98. [113]

    Ben’s solicitor filed a notice of ceasing to act on 6 August 2021. Ben, then without legal representation, did not comply with orders made by Robb J on 17 September 2021 extending to him the opportunity to inform Mr Chapple and Trevor what orders he would seek regarding the pleadings.

99. [114]

    On 15 October 2021, Mr Chapple filed a motion seeking an order that the proceedings commenced by Ben be dismissed and that the amended statement of claim be struck out.

100. [115]

     In December 2021, Robb J ordered that Ben’s claim be dismissed on 25 February 2022, with the intention that Ben could make an application to set aside the order for dismissal, which the Court would make only if satisfied that Ben had remedied the defaults in the pleadings and was in a position to serve a further amended statement of claim that pleads an arguable case for relief (Wilcox v Chapple (No 2) [2021] NSWSC 1607, at [47]).

101. [116]

     A new pleading was subsequently filed by Ben, which led to an application before Kunc J on 8 December 2023, pursuant to a notice of motion filed on 9 November 2023 by Mr Chapple. Mr Chapple sought dismissal of the proceedings with costs, on the basis that Ben had become a bankrupt on 14 September 2023 and his trustee in bankruptcy had abandoned the action. The Court dismissed the proceedings with costs but stayed the orders to 2 February 2024 (apparently on the basis of statements from Ben’s solicitor that his bankruptcy might shortly be annulled, which I note did not prove to be the case as Ben remained an undischarged bankrupt at the time of the hearing before me) (Wilcox v Chapple [2024] NSWSC 82).

102. [117]

     Ben, by notice of motion, subsequently sought an extension of the stay pending various events occurring up to and including the annulment of his bankruptcy. That notice of motion was dismissed with costs, and the extension was not granted.

103. [118]

     Meanwhile, Trevor died on 27 May 2022. Probate of his will was subsequently granted jointly to Monique (his daughter) and Raymond Watson (his son from an earlier marriage), as noted above. However, on 21 November 2023 orders were made revoking the grant of probate and ordering that Letters of Administration with the will dated 5 May 2022 annexed be granted to Monique in her sole name, after Mr Watson had informed her that he wished to retire as executor (see Monique’s affidavit sworn 11 July 2024 at [3]-[4]).

104. [119]

     To put this in context, at the time of Trevor’s death, Robert was 46 years old and living in Sydney. By then, on Robert’s own evidence (see below), Robert was estranged from Trevor (in his words, the relationship with Trevor had “irrecoverably” broken) (see Robert’s affidavit sworn 4 September 2023 at [37]).

Procedural history of the present proceedings

1. [120]

   It is against that background that the procedural history of the respective proceedings now before the Court may be seen. The procedural history is relevant to a consideration of the application made by Robert’s solicitor on the first day of the hearing to vacate the hearing. This history is gleaned from Ms Ord’s 12 August 2024 affidavit (the content of which was not challenged by Robert) and the documents available on the Court file. Paragraph references in what follows are to Ms Ord’s affidavit.

2. [121]

   The Equity Proceeding was commenced by statement of claim filed on 2 March 2021 and was first listed for directions on 26 March 2021. Robert was represented by Oliveri Lawyers. Mr Emanueli Oliveri was the solicitor on the record (see [6]). On 25 March 2021, “Oliveri Attorneys” filed a notice of change of solicitor, Mr Dominic Oliveri then being appointed as Robert’s solicitor ([7]).

3. [122]

   On 19 April 2021, by consent, Registrar Hedge made orders (in the online court) that Robert provide a copy of his proposed amended statement of claim to all parties by 11 May 2021 ([8]).

4. [123]

   On 4 May 2021, Oliveri Attorneys filed and served a notice of ceasing to act for Robert ([9]). Then, on 25 May 2021, Oliveri Attorneys filed and served a fresh notice of appointment of solicitor. A proposed draft amended statement of claim was then (belatedly) served ([10]).

5. [124]

   On 27 May 2021, the matter was listed for directions and, by consent, Robert was ordered to file and serve the amended statement of claim by 4 June 2021 and to pay any costs thrown away by the amendments as agreed or assessed ([11]).

6. [125]

   On or about 31 May 2021, an application was made by Robert’s solicitor for production of a particular (SYF2994/1994) Family Court file; orders were made on 2 June 2021 by Senior Deputy Registrar Hedge for inspection access to the lawyers only and no copy access to the Family Court file ([12]).

7. [126]

   On 10 June 2021, the amended statement of claim was (again belatedly) filed by Robert’s solicitors ([13]). (Non-compliance with directions as to the filing or service of pleadings or evidence is a hallmark of the way in which Robert’s case was conducted, as will be seen.)

8. [127]

   On 30 August 2021, orders were made through the online court for the first defendant (Mr Chapple) to file a notice of motion to strike out the statement of claim by 8 September 2021 ([14]).

9. [128]

   On 15 September 2021, orders were made through the online court adjourning the proceeding to 28 September 2021 ([15]).

10. [129]

    On 23 September 2021, Oliveri Attorneys filed and served a notice of intention of ceasing to act for Robert ([16]).

11. [130]

    On 24 September 2021, orders were made by the Equity Registrar for Robert to file affidavits in respect of Mr Chapple’s strike out notice of motion by 8 October 2021 ([17]). Shortly thereafter, on 30 September 2021, Oliveri Attorneys filed and served a notice of ceasing to act for Robert ([18]).

12. [131]

    On 7 October 2021 (the day before Robert’s affidavit evidence on the strike out motion was due to be filed), Mr Rupert Gray of Keypoint Law filed and served a notice of appointment of solicitor ([19]).

13. [132]

    Thereafter, successive orders were made extending the time for the filing of Robert’s affidavit evidence in relation to the strike-out motion, culminating in an extension granted on 23 November 2021 to 13 December 2021 (and a guillotine order made that Robert could not rely on any affidavits filed after that day); and Robert was ordered to pay the defendants’ costs thrown away as a result of the directions hearing (see [20]-[23]).

14. [133]

    On 13 December 2021, Robert finally served his affidavit evidence in relation to the strike out motion ([24]).

15. [134]

    On 14 December 2021, orders were made by consent for Robert to serve a draft further amended statement of claim by 23 December 2021 and for the defendants to review and indicate whether they consenting to the filing thereof ([25]). It is Ms Ord’s understanding that at that stage senior counsel was acting for Robert (see [25]).

16. [135]

    No draft further amended statement of claim was served by 23 December 2021 ([26]).

17. [136]

    On 10 January 2022, Mr Gray filed and served a notice of intention of ceasing to act for Robert ([27]) and, on 18 January 2022, Mr Gray filed and served a notice of ceasing to act for Robert ([28]).

18. [137]

    On 31 January 2022, James Welch of Access Law Group filed and served a notice of appointment of solicitor ([29]).

19. [138]

    On 1 February 2022, the strike out motion was listed for hearing on 3 March 2022 and a direction was made for any proposed further amended statement of claim to be served by 5pm on 25 February 2022 ([30]). Seemingly in a reprise of what had happened in relation to the Oliveri retainer, shortly after the directions were made on 1 February 2022, on 4 February 2022, James Welch filed and served a notice of intention of ceasing to act for Robert ([31]) and, on 11 February 2022, James Welch filed and served a notice of ceasing to act for Robert ([32]). Mr Welch was therefore on the record as Robert’s solicitor for less than a week before the filing of his notice of intention of ceasing to act.

20. [139]

    On 25 February 2022, Florian Ammer of Piper Alderman filed and served a notice of appointment of solicitor ([33]).

21. [140]

    On 3 March 2022, leave was granted for Robert to file and serve a further amended statement of claim unless objected to by the second defendant (Trevor), and that, if no objection was received, the further amended statement of claim be filed by 18 March 2022 ([34]).

22. [141]

    On 22 March 2022, orders were made for Robert to file his further amended statement of claim by 29 March 2022, for the filing of defences by 26 April 2022, and for Robert to pay the costs thrown away by each of the defendants arising from the further amended statement of claim ([35]).

23. [142]

    On 29 March 2022, Robert filed his further amended statement of claim ([36]).

24. [143]

    On 23 May 2022, orders were made extending the time for the first defendant (Mr Chapple) to file and serve a defence and the time for Robert to file any replies to the defendants’ defences and the matter was stood over to 17 June 2022 ([37]).

25. [144]

    On 17 June 2022, the Court was informed that Trevor had died and orders were made extending the time for Robert to file replies to the defendants’ defences and for the estate to inform the parties once a grant of probate was received. The matter was stood over to 20 October 2022 ([38]).

26. [145]

    On 11 October 2022, just over a week before the matter was due back in Court, Florian Ammer filed and served a notice of intention of ceasing to act for Robert ([39]) and, on 18 October 2022, Florian Ammer filed and served a notice of ceasing to act for Robert ([40]).

27. [146]

    By email sent on 19 October 2022, Robert indicated that he would be seeking an adjournment on 20 October 2022 to seek further legal advice “with further evidence pending subpoenas and witnesses” ([41]). Robert did not attend the directions hearing on 20 October 2022 and the matter was adjourned to 10 November 2022 ([42]).

28. [147]

    On 10 November 2022, Mr Chapple indicated that judicial advice was required as to whether he was justified in continuing to defend the proceedings and an order was made that any such application be filed by 23 November 2022 ([44]).

29. [148]

    On 30 November 2022, the notice of motion for judicial advice was listed on 9 February 2023 before Lindsay J ([45]). On that date, Robert appeared and opposed the advice being given. Lindsay J made orders that Mr Chapple was justified in defending the claims against him (in the further amended statement of claim filed on 29 March 2022) in his capacity as executor of Patricia’s estate, on certain conditions ([46]).

30. [149]

    On 12 April 2023, directions were made for the filing of affidavit evidence by the defendants by 28 April 2023 and Robert by 26 May 2023; and for the filing by the third and fourth defendants of defences by 28 April 2023. The matter was stood over to 1 June 2023. Ms Ord notes that Robert did not comply with the directions as to the service of his affidavit evidence ([47]).

31. [150]

    On 26 May 2023, Robert commenced the Family Provision Proceeding. On its face, the summons did not disclose any solicitor on the record for Robert ([48]).

32. [151]

    On 31 May 2023, the Equity Proceeding was listed for directions before the Equity Registrar. Robert did not provide proposed directions in the online court and orders were made that if he failed to do so by 11 am on 20 June 2023 the proceeding would be dismissed. The Equity Proceeding was listed for directions on 22 June 2023 ([49]).

33. [152]

    Robert did not serve affidavit evidence as required ([50]). On 22 June 2023, Robert appeared in person at the directions hearing and orders were made for him to serve his evidence in reply by 13 July 2023 ([51]).

34. [153]

    On 30 June 2023, the Family Provision Proceeding was first listed before Hallen J, in the then Probate and Succession List; and Robert appeared in person. The matter was stood over for further directions before the Equity Registrar on 20 July 2023 together with the Equity Proceeding ([52]). Ms Ord has deposed, on information and belief, that Robert spoke to a secretary at her office on 12 July 2023 asking when his reply evidence was due and that she informed him that it was due to be served on 13 July 2023 ([53]).

35. [154]

    On 13 July 2023, a solicitor (Gary Rogers of Blueprint Law) contacted the firm acting for Monique (Bridges Lawyers), advising that he had been approached by Robert possibly to act for him in relation to both proceedings and that Robert required an extension of time for his reply evidence (see [54]). Unsurprisingly, Robert did not serve his reply evidence by 13 July 2023 ([55]).

36. [155]

    On 20 July 2023, the Equity Proceeding was before the Equity Registrar. Robert appeared in person and Monique was represented by counsel. Ms Ord has deposed, on information and belief, that Robert on that occasion informed the Court that he had retained Gary Rogers of Blueprint Law as his solicitor. Orders were made for Robert to serve any evidence in reply by 10 August 2023, with a guillotine order in relation to any further reply evidence. Robert was ordered to pay the costs of the defendants’ appearance of that day ([56]). Robert did not file any evidence in reply by 10 August 2023 ([57]). Nor does it appear that Mr Rogers ever filed a notice of appointment as Robert’s solicitor.

37. [156]

    Instead, on 16 August 2023, Glenn Kable of Hartmann & Associates filed and served a Notice of Appointment of Solicitor ([58]).

38. [157]

    On 21 August 2023, (out of time and notwithstanding the guillotine order that had been made) Robert filed his affidavit in reply. At the directions hearing on that date Robert was represented by Mr Barry Dean of counsel. The Equity Registrar stood over the proceedings to 9 October 2023 to allocate a hearing date. Ms Ord has deposed that the Equity Registrar indicated that she would not allow any more time and would ensure that a hearing date would be allocated on the next occasion ([59]).

39. [158]

    In the Family Provision Proceeding, Robert filed his affidavit evidence in chief on 4 September 2023 (over three months following the filing of his summons). The defendants filed all their evidence in that proceeding on or before 9 October 2023 ([60]).

40. [159]

    On 9 October 2023, the Equity Registrar stood over the Equity Division Proceeding to 19 October 2023 ([61]). (Ben, the plaintiff in the related Equity Division proceeding, had by then been made bankrupt, as noted earlier.)

41. [160]

    On 19 October 2023, at the directions hearing before the Equity Registrar, both Robert’s counsel, Mr Dean, and Monique’s counsel, Mr Tom O’Brien, agreed that the matter was ready to take a hearing date. The Equity Registrar referred the matters to the Chambers of the Chief Judge in Equity for the allocation of a hearing date ([62]) and, on 20 October 2023, both proceedings were listed for hearing (on 12 to 15 August 2024 and 19 to 20 August 2024) ([63]).

42. [161]

    On 17 November 2023, Robert filed his reply affidavit in the Family Provision Proceeding ([64]).

43. [162]

    Between November 2023 and June 2024, Robert remained represented by Mr Kable, solicitor, and Mr Dean of counsel ([65]).

44. [163]

    On 12 December 2023, Mr Kable filed and issued a subpoena to Bedford Chartered Accountants (as I understand it, this being the registered office of the relevant companies), seeking (among other things) documents evidencing a trust ([66]).

45. [164]

    On 13 May 2024, Mr Kable prepared a Notice of Intention Ceasing to Act for Robert. On 11 June 2024, Mr Kable attempted to file a Notice of Ceasing to Act but was apparently unable to do so because a Notice of Intention of Ceasing to Act had not been filed and served on Robert ([67]). On 13 June 2024, Mr Kable filed and served a further Notice of Intention of Ceasing to Act for Robert ([68]).

46. [165]

    On 17 June 2024, the two sets of proceedings were listed for pre-trial directions before Kunc J. Robert appeared in person and said that his solicitors had “just bowed out”; that he knew he needed another solicitor and intended to have legal representation by the hearing; and that he wanted to amend his Further Amended Statement of Claim again. Ms Ord, who was in attendance in Court, has deposed that Kunc J stated that if Robert wanted to obtain legal advice to amend his claim he should do so as soon as possible as the hearing was still going to proceed ([69]). Ms Ord has deposed that, during this directions hearing, jurisdictional questions regarding the ability of the Court to hear issues affecting the estate of a bankrupt were raised; and counsel for the third defendant (Sanderson Estates) submitted that it was possible the proceedings would need to be transferred to the Federal Circuit and Family Court of Australia. Ms Ord deposes that Robert responded to this issue by saying that it was shame that the proceedings “can’t get over and done with”. The two proceedings were stood over until 16 July 2024 ([70]).

47. [166]

    On 21 June 2024, Mr Kable filed and served a Notice of Ceasing to Act for Robert ([71]).

48. [167]

    On 12 July 2024, Monique filed a notice of motion seeking, inter alia, relief under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (Cross-Vesting Act) (to avoid the need for the matter to be transferred to the Federal Court) ([72]).

49. [168]

    On 16 July 2024, both sets of proceedings were listed for a pre-trial directions hearing before Kunc J. Ms Ord was in Court instructing Mr Harry Rogers of counsel for Monique. Ms Ord has deposed that, at this directions hearing, his Honour was considering Monique’s notice of motion and that Robert’s position was that he wanted the case to go on in this Court and for the case to be “over and done with”, rather than delaying the hearing by transferring the matter to the Federal Circuit and Family Court ([73]). Ms Ord deposes that at the end of this further pre-trial directions hearing, Kunc J asked whether Robert sought to obtain legal representation prior to the hearing; and that Robert indicated that he was liaising with Mr Wilson SC; that there was some difficulty finding a solicitor because it was school holidays; and that he was going to find someone that week to represent him. The proceedings were then stood over until 31 July 2024 ([74]).

50. [169]

    On 31 July 2024, there was a further pre-trial directions hearing before Kunc J, during which his Honour made orders pursuant to the Cross-Vesting Act for the matter to remain listed for final hearing in this Court. Ms Ord was present occasion instructing counsel and has deposed that, prior to making those orders, Kunc J confirmed with Robert that he agreed to the proceedings remaining listed in the Supreme Court ([75]). Ms Ord deposes that his Honour enquired as to the situation with Robert’s legal representation and that Robert informed the Court that he still did not have any legal representation, but that Mr Wilson SC was recommending a solicitor. Ms Ord deposes that his Honour warned Robert that time was running out for him to obtain new legal representation and said (though ultimately he was proven wrong on this) that no-one wanted a situation where his new lawyers were asking for more time to prepare for the hearing ([76]). At the end of the further pre-trial directions made on that occasion, Kunc J noted that “[t]he plaintiff has informed the Court that he intends to be legally represented at the hearing but has not yet obtained that legal representation and hopes to do so in the very near future” ([77]).

51. [170]

    On 5 August 2024, Mr Chapple sought to relist the matter, to seek further judicial advice ([78]); and on 6 August 2024, the matter was listed before Kunc J and then Lindsay J. Ms Ord deposes that Robert was not present for these directions hearing but that she spoke to him on the telephone later that afternoon and he indicated he was aware he had missed the directions hearing earlier that day and that the final hearing for the matter was listed on 12 August 2024. Ms Ord deposes that Robert informed her that he was still looking to engage a solicitor ([79]).

52. [171]

    On 6 August 2024, Monique’s solicitors (Bridges Lawyers) wrote to the other parties providing them with a copy of the 1962 Trust Deed which had recently been found. Ms Ord has deposed, on information and belief from Monique, that: Monique’s son, Hamish Wye, came across the trust deed in a box containing mostly old photographs in the “art room” at Wangrawally where he resides; the contents of the box came from Allawa (where Ian Sanderson had resided); that Monique had assisted her father to move records and sentimental items out of Allawa into the art room after Patricia died and before Allawa was sold; and that Monique had previously looked through the art room for relevant documents but had not found any, other than those already in the Court Book, so must have overlooked the trust deed or its import was not appreciated by her ([80]).

53. [172]

    Ms Ord has deposed that, on 7 August 2024, she spoke with Robert on the telephone, in relation to arranging delivery of the Court Book to him, and that during this telephone call Robert did not inform her that he had engaged a solicitor in relation to the Proceedings ([81]).

54. [173]

    On 9 August 2024, Monique’s solicitors received email notification from the Online Registry that Mr David Wilson of Wilsons Solicitors had been appointed as the legal representative for Robert ([81]). Ms Ord has deposed that, shortly after receiving this notification, she and the partner at her firm (Ms Anthea Kennedy) called Mr Wilson, who informed them that he had been engaged by Robert on 6 August 2024 in relation to this matter but that he had only been provided with the Court Book on 8 August 2024. Ms Ord has deposed that during this call Mr Wilson indicated that he would be seeking an adjournment of the hearing on 12 August 2024 (the very scenario that Kunc J had said no-one wanted) and that Ms Kennedy informed him that they would be opposing any such application ([83]).

55. [174]

    Ms Ord has further deposed that in the afternoon of 9 August 2024 she sent an email to Mr Wilson enclosing Monique’s Submissions, Chronology, and Objections ([84]); and that, later that afternoon, she received an email from a member of staff from Wilsons Solicitors which enclosed a letter from Mr Wilson, relevantly stating that “in light of this week’s recent events, we are instructed to seek that next week’s hearing on 12 to 14 August 2024 be vacated and we foreshadow filing a Notice of Motion and affidavit material in support on Monday, 12 August 2024 or as soon as possible, beforehand”, together with two Notices of Appointment of Solicitor filed in the respective proceedings ([85]).

56. [175]

    From the above chronology, it can be seen (as Ms Ord deposes in her affidavit) that: from the commencement of the Equity Proceeding on 2 March 2021 and until 21 June 2024 Robert was legally represented for most of that 3 year period (although I note that there were various changes of solicitor in that period, some within the one firm – Oliveri Lawyers); and that Robert was only unrepresented for limited times during that period (7 days from 30 September 2021 to 6 October 2021; 12 days from 18 January 2022 to 30 January 2022; and 12 days from 11 February 2022 to 23 February 2022, during which periods Ms Ord deposes that no substantive steps were taken; and approximately 10 months from 18 October 2022 to 16 August 2023) ([5]).

57. [176]

    Ms Ord further notes that, from the commencement of the Equity Proceeding to date, Robert has changed solicitors 6 times (I would also note that he appears to have the assistance from a number of counsel over that period – at least from Mr Dean and Mr Rogers but also it seems from Mr Condon SC, Mr Wilson SC and, on Robert’s evidence, Mr Glissan QC). I also note that at least some of the changes of solicitor appear to have occurred at or about the time that steps were due to be taken in the Equity Proceeding, leading to further extensions of time in Robert’s favour.

58. [177]

    Relevant to the complaints here made by Robert as to non-disclosure by Patricia (or others) of matters relating to the alleged trust(s), Ms Ord in her affidavit emphasises that at no point up to the hearing of these proceedings did Robert (or his solicitors) seek discovery orders or issue any notices to produce (although as noted above there had been subpoenas issued on his behalf); and that the production to Robert of the 1962 Trust Deed (once it was discovered shortly prior to the hearing) was despite no discovery order having been sought or made ([5]; [80]).

Application to vacate hearing

1. [178]

   As adverted to earlier, at the commencement of the hearing on 12 August 2024, an application was made on Robert’s behalf for the vacation of the hearing dates. The application had been foreshadowed in an email to my associate on 9 August 2024 (copied to the defendants). That email advised that Mr Andrew Hourigan of counsel was briefed to appear on behalf of Robert in relation to the application to vacate the hearing. That did not transpire to be the case. I was informed that there was a misunderstanding as to counsel’s availability (12/8/24; T 26.26). There was no appearance by any counsel for Robert during the course of the hearing.

2. [179]

   The application was made by notice of motion dated 11 August 2024 and filed, by leave, at the commencement of the hearing. The application was supported by an affidavit sworn 11 August 2024 by Mr David Wilson, the solicitor who ultimately appeared for Robert at the hearing. Mr Wilson deposed that he commenced acting for Robert on 9 August 2024 (the Friday before the hearing) (although, as will be seen, he had been approached to act at an earlier time) ([5] of Mr Wilson’s affidavit); and it appears from the evidence that Mr Wilson had at least received the Court Book in electronic form on 8 August 2024. In his affidavit, Mr Wilson deposed to the following chronology in relation to his appointment as Robert’s solicitor.

3. [180]

   First, that Robert conferred with him in or around May 2023, seeking that he act in relation to a breach of trust claim the subject of these proceedings. (At this stage, as is evident from the procedural chronology set out above, Robert had been unrepresented for around 6 months, his most recent solicitor before then having been Mr Ammer, who ceased to act for Robert in October 2022 after a period of some 8 months as his solicitor. It will be noted from the procedural chronology that directions had been made in April 2023 for the filing by Robert of affidavit evidence by 26 May 2023, which seems to coincide with the approach made to Mr Wilson in May 2003.) Mr Wilson deposes that he declined to act for Robert at that stage for the following reasons: his then significant level of work and other commitments; that Robert was not in funds; and that there was no trust deed document in existence substantiating Robert’s breach of trust claim ([6]). (At least the second of those reasons remained the case at the time that Mr Wilson did accept the retainer.)

4. [181]

   Second, that Robert contacted him in or around late July 2024 again requesting that he act for him. (By this time, Robert had successively approached and/or retained at least two other solicitors to act for him – Mr Rogers and Mr Kable, the latter having gone onto the record as his solicitor in August 2023; and had been represented by counsel, Mr Dean). As noted above, Mr Kable ceased to act for Robert in June 2024, after being on the record as his solicitor for about 10 months, although Mr Wilson deposes that Ms Kable ceased to provide legal services for Robert from May 2024 [(22)(d)]. Mr Wilson deposes that he declined again to act for Robert, for the same reasons as earlier ([8]).

5. [182]

   Third, on 6 August 2024, in the late evening, Robert sent Mr Wilson an email attaching a copy of the 1962 Trust Deed (which Mr Wilson considered appeared to establish a “direct bloodline trust”) ([9]) and, later that evening, Robert sent him a copy of correspondence from Monique’s lawyers in relation thereto ([11]). Mr Wilson has deposed that he received the Court Book in both paper and digital form on 9 August 2024 (the latter being corrected in oral submissions), following which he confirmed with Robert that he was prepared to act for him. In oral evidence, Mr Wilson clarified that he received the Court book in electronic form on 8 August 2024 and in proper form on 9 August 2024 (12/8/24; T 4). (I note that there is some inconsistency between this timeline and the conversation on 9 August 2024 to which Ms Ord has deposed in which she says that Mr Wilson informed her and Ms Kennedy that he had been engaged by Robert on 6 August 2024 but the explanation for this may simply be a misunderstanding as to what had been said about the approach by Robert on 6 August 2024 and when there was a formal acceptance of the retainer. What is certainly not disputed is that Mr Wilson was only retained very shortly before the hearing was listed to commence.)

6. [183]

   In his affidavit, Mr Wilson then deposes to his analysis of the 1962 Trust Deed and to his opinion that, prima facie, the Trust Deed was an “intergenerational succession device and testamentary instrument” ([16]), before referring to Robert’s past legal representation (which accords with the chronology in Ms Ord’s affidavit other than the statement that Mr Kable ceased to provide legal services to Robert in late May 2024, though not filing a notice of ceasing to act until more recently) ([22]).

7. [184]

   Mr Wilson deposes that, on the basis that the production of the 1962 Trust Deed “substantially changes the nature of the plaintiff’s claim including but not limited to the apparent prospects of success”, he was prepared to act on behalf of Robert ([25]). Mr Wilson also deposes to his discussions in relation to briefing counsel in the matter ([27]-[28]). Pausing here, it is relevant to note that Mr Wilson was clearly aware, at the time he accepted instructions to act for Robert, that the proceedings were listed for a hearing to commence the following Monday. Further, as Monique points out, it is not suggested that any approaches were made to counsel who had previously been involved in the matter (and would have had more familiarity with the matter).

8. [185]

   Mr Wilson’s affidavit then makes submissions in support of the application for the vacation of the hearing date, deposing to his apprehension that Robert would be substantially disadvantaged if the hearing proceeded insofar as there was a great volume of material in the Court Book to analyse “as well as certain outstanding enquiries being required” (see from [30]).

9. [186]

   Those enquiries were said to involve: Robert being given the opportunity to consider and understand the circumstances surrounding the discovery of the Trust Deed as well as what other documents may have accompanied the Trust Deed when first dealt with following Ian Sanderson’s death ([31]); the interrogation of Mr Duffy and/or Mr Chapple ([32]); to subpoena the records of Oliveri Lawyers for documents evidencing any advice provided by Mr Duffy to Ben regarding the existence of the trust ([33]); discovery and inspection of documents in the possession and control of the defendants ([34]); and “likely additional steps which would be appropriate to undertake which are likely to present in due course upon consideration of the pleadings as well as the evidence available” ([35]). Other than the first of those steps (relating to the circumstances surrounding discovery of the 1962 Trust Deed), all those enquiries could have been (and in some cases had been) undertaken at a much earlier time in the proceedings.

10. [187]

    It should be noted that there was no suggestion in the notice of motion or affidavit (nor on the hearing of the application to vacate) that Robert would proffer any sort of undertaking as to the costs thrown away by an adjournment (let alone be in a position to meet such costs). Indeed, the notice of motion sought an order that costs be reserved (Order (3)). Any such offer would in any event have been worthless given the evidence as to Robert’s financial position.

11. [188]

    In oral submissions in support of the application, Mr Wilson said that adjournment was sought so that he could properly “survey” the evidence in the Court book and obtain a better understanding of the case (12/8/24; T 4.29), though as noted his affidavit made clear the intention to carry out a raft of investigations or enquiries. Mr Wilson emphasised his opinion that, with the discovery of the 1962 Trust Deed, the “dynamic” of the case had changed (12/8/24; T 3.28).

12. [189]

    Unsurprisingly, Monique opposed the vacation of the hearing (as had been foreshadowed to Mr Wilson when the intention to seek an adjournment was first raised). Ms Ord’s 12 August 2024 affidavit was read on the application and the exhibits thereto were tendered and admitted without objection.

13. [190]

    Counsel for Monique in oral submissions referred to the decision of Gleeson J, sitting in the Federal Court as her Honour then was, in Tamaya Resources Limited (in liq) v Deloitte Touch Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 (Tamaya); and in particular to the relevant factors to be considered on applications of this kind (albeit there an application for leave to amend the pleading) (12/8/24; T 7).

14. [191]

    Those factors (drawn from the principles articulated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon)) are: the nature and importance of the amendment to the party applying for it; the extent of the delay and costs associated with the amendment; the prejudice that might be assumed to follow from the amendment, and that which is shown; the explanation for any delay in applying for that leave; the parties’ choices to date in the litigation and the consequences of those choices; the detriment to other litigants in the court; potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification (see at [127] of Tamaya).

15. [192]

    Addressing those factors, Monique’s counsel made the following six points. First, it was submitted that, even with the discovery of the 1962 Trust Deed, it leads to a “dead end” and therefore it was said that a question of proportionality arose. Second, that Robert has been represented by lawyers at all relevant times and has never sought discovery orders from the defendants. Third, that if Robert wanted to seek disclosure now or to amend the pleading in some way, that could be dealt with (inferentially, without the need for the hearing to be vacated). Fourth, that the explanation given for the delay was unsatisfactory (in that it explained matters from Mr Wilson’s perspective but left open the question as to what Robert was doing prior to Mr Wilson’s recent engagement). Fifth, the prejudice to Monique (see below). Sixth, as to the issue as to public confidence in general and, in particular, in a case where judgments of this Court and the Court of Appeal are sought to be set aside by reason of fraud and alleged non-disclosure. Counsel expanded on those points as follows.

16. [193]

    As to the first point, counsel noted that, under the 1962 Trust Deed, whatever was in the trust, it could be collapsed in favour of Patricia once she turned 30 (12/8/24; T 8) and emphasised that the relevant properties (part Barwon Vale and Gidgerygah) were owned by the respective Sanderson Companies (Sanderson Estates and I.F. Sanderson). Counsel submitted, by reference to the structure of the shareholding in those companies, that the properties were not property that Ian Sanderson could himself have put into the trust (nor was there any evidence that he had done so) and nor was there evidence that the shares of the companies were held on trust (the company annual returns from 1990 being expressly to the contrary). Accordingly, it was submitted that the discovery of the 1962 Trust Deed did not overcome any of the documents that pointed against Ian Sanderson holding the properties in question on trust pursuant to the terms of the 1962 Trust Deed. It was submitted that the company documents show that, from at least 1999/2000, the companies were not acting as trustee and that the shares in these companies were not held on trust. Hence, counsel for Monique argued that the discovery of the 1962 Trust Deed was not something that changed the dynamic of the case as Mr Wilson had submitted (12/8/24; T 13.21-30).

17. [194]

    As to the second point, emphasis was placed on the fact that Robert was represented (by Mr Dean of counsel) as at October 2023, when the matter was set down for hearing (at which time it was said to be ready for hearing); and that Robert, through the various proceedings in which he had been involved, must be familiar with the time it takes for solicitors to be ready for hearings. Significance was attached to the fact that at the key points during the proceedings when Robert was represented there was no application for discovery orders (which might have led to searches of old records of the late Mr Sanderson’s estate); and it was emphasised that the production of the 1962 Trust Deed was not pursuant to any discovery obligation (12/8/24; T 14.25-33).

18. [195]

    Insofar as weight was placed by Robert on the Duffy Letter, counsel for Monique submitted that this letter was consistent with the part Barwon Vale property not having been put into the trust established by the 1962 Trust Deed (since the property was there said to have been left “absolutely” to Ian Sanderson with no conditions) and that the reference to Patricia’s interests in Sanderson Estates being “covered through trusts” (of which Ian Sanderson is trustee) aligned with the 1962 Trust Deed, which gives broad power to make “capital distributions to a person who is strictly speaking only entitled to income”. Counsel for Monique pointed to the observation by Mr Wilson, in his affidavit, that the 1962 Trust Deed is consistent with the Duffy Letter; and submitted that this meant that the same enquiries that a solicitor might wish to make on the basis of the 1962 Trust Deed arose from the third paragraph of the Duffy Letter (and hence those enquiries could have been made at an earlier time) (12/8/24; T 15.20).

19. [196]

    It was submitted that an inference should be drawn that a deliberate decision was made not to seek discovery (noting Mr Wilcox’ extensive litigation experience by this time and the fact that there are allegations made in the Equity Proceeding which are based upon disclosure or discovery obligations). Reference was made in this regard to the further amended statement of claim at [20B] and [20C], where it is alleged that, as executor and as defendant to the 2010 Proceeding, Patricia should have but failed to disclose the contents of the Duffy Letter and the conversations to which she was a party which disclosed the existence of a trust (12/8/24; T 15.24-30).

20. [197]

    As to the third point, counsel for Monique indicated that, if Robert wished to issue a “targeted” notice to produce (arising from the discovery of the 1962 Trust Deed), it would be met in the course of this hearing and, similarly, that if Robert wished to make an amendment to the pleading (say, to change the identity of the alleged trustee to Sanderson Estates) that case could be met (suggesting an amendment to the pleading at [11A] and cognate changes at [14] and [14A] and [20B] to realign the pleading in light of the 1962 Trust Deed and Duffy Letter; i.e., to amend the identity of the alleged trustee to accord with the Trust Deed and to allege a failure to disclose the 1962 Trust Deed) (12/8/24; T 16-17). (That invitation was not taken up by Robert.)

21. [198]

    As to the fourth point, complaint was made that the required explanation for the adjournment application was lacking in that the explanation proffered was only from the perspective of Mr Wilson, not the plaintiff (Robert). Counsel for Monique argued that an explanation was required from Robert and/or the advisers acting for him at the relevant times, as to why they did not at an earlier time take the steps that Mr Wilson says he now wanted to take (noting that in his affidavit Mr Wilson (at [19]) acknowledged that the likely nature and effect of the dispositive provisions of the trust deed arrangement described in the Duffy Letter of 25 September 1980 are very similar to the provisions of the 1962 Trust Deed) (12/8/24; T 17).

22. [199]

    As to Mr Wilson’s statement to the effect that Mr Kable effectively ceased acting for Robert in May 2024, counsel for Monique submitted that this meant that Robert had had ample time to obtain alternative representation and noted that there was no explanation as to the steps Robert took to engage any solicitor other than Mr Wilson. Emphasis was placed on the fact that Kunc J had urged Robert to take steps to engage a solicitor at directions hearings in this matter. It was submitted that if there was a difficulty in Robert finding a solicitor in circumstances where he cannot pay for the solicitor this should not be sheeted home to the inconvenience and costs of the defendants; and that this heightened the prejudice for the defendants because a costs thrown away order would be meaningless (and was not even here being proffered) (12/8/24; T 17.42-T 18.3, T 24.1-15). A similar submission was made for Mr Chapple. Counsel for Monique also pointed to the lack of any explanation as to why counsel who had previously acted for Mr Wilcox were not approached (or whether they were approached and would not act). It was submitted that this was significant because those who had acted for Robert previously could more readily “get up to speed” without the need for an adjournment (12/8/24; T 1824-30).

23. [200]

    Insofar as Mr Wilson deposed that the same solicitor was acting for Ben and Robert on both sides of the proceedings, counsel for Monique said (12/8/24; T 19) that Kunc J had given relief from the Harman undertaking with respect to this, and that both Robert’s and Ben’s matters had been running together with the intention that they would have been heard together.

24. [201]

    As to the steps that Mr Wilson indicated he wished to take, counsel for Monique pointed out that a subpoena had already been issued to Mr Duffy, seeking among other things “[a]ny Trust documents in connection with or affecting” various entities or persons (including Gidgerygah P/L, I.F. Sanderson; Sanderson Estates; Patricia and Trevor), and that the answer to this from Mr Duffy (by letter sent by email on 4 June 2019) was that he did not have any of the documents mentioned in the subpoena. As to the proposed subpoena to Oliveri Lawyers, for production of any advice that might have been given to Ben, counsel for Monique submitted that any such advice would not be dispositive of these proceedings. It was also noted that various other subpoenas that have been issued in the proceedings, including to Deloitte and to Corrs Chambers Westgarth, with nothing being produced; as well as a subpoena to the registered office of the companies and their accountant, the response being that there was nothing to produce. Accordingly, it was submitted that there had already been various steps taken to find out whether there is documentation in support of the trust claim (12/8/24; T 20.28-29).

25. [202]

    As to the fifth point (the question of prejudice), it was noted that there had been multiple defaults by Robert in meeting the timetables during the course of the hearing, which had already caused delay in having this matter set down for hearing (as evident by reference to the procedural chronology above). By way of example, counsel for Monique pointed to Trevor’s death in 2022, as demonstrative of the prejudice in terms of loss of potential witnesses of people who were available at the time (12/8/24; T 21.23). (Of course, that prejudice has by now already been suffered. It is not apparent that any additional prejudice of this kind was likely if there were to have been some further delay in the hearing.)

26. [203]

    Reference was also made in Ms Ord’s affidavit to the affidavit sworn by Robert on 4 September 2023 in the Family Provision Proceeding (at [42]-[50]), setting out his assets, liabilities, income and expenses and to the production by Robert on 1 August 2024 (albeit incomplete) of bank statements pursuant to a Notice to Produce issued by Monique on 3 July 2024, which indicated that Robert’s financial position was unlikely to enable him to meet costs orders were they to be made (it being also noted that Robert is on a disability support pension). In that regard, Ms Ord has deposed that the total of Monique’s costs from 19 October 2023 (when the respective proceedings were set down for a final hearing), until the end of the first day of the hearing total approximately $152,048.51 ([96]) and Ms Ord has estimated that Monique’s costs to prepare for another hearing at a later date would be at least $120,000 in addition to the legal costs already thrown away if the matter were to be adjourned ([99]).

27. [204]

    Ms Ord has deposed, on information and belief from Monique, as to the stress and anxiety caused to Monique by the ongoing proceedings, the impact of the proceedings on Monique’s family and her employment and family business, the stress suffered as a result of Robert’s disparaging remarks about Trevor (see the Facebook posts in Ex H) and the delay caused in the finalisation of the administration of Trevor’s estate (see [101] of her affidavit); as well as the detrimental impact of an adjournment on the farming business and the costs already incurred in relation to the hearing (such as the taking of long service leave by Monique and the travel and accommodation expenses incurred); and Monique’s concern at Robert’s inability to meet costs thrown away by any adjournment ([101]).

28. [205]

    As to the sixth point, counsel pointed out that Robert, since 2010, has made a series of claims against these very assets or premised upon these assets (either that he owns them with his brother, or that he deserves further provision from people because of them); and it was submitted that there must come an end to such disputation. Counsel submitted that public confidence in the administration of justice requires no further delay to be countenanced, particularly because of two specific aspects of this case: first, the public comments of the kind made in the Facebook posts (Ex H) about the justice process and what was done in respect of the other judgments; and, second, that there should be a determination as to whether the former judgments (dating back to 2012 and 2014) can be set aside for fraud (12/8/24; T 22.38-45). Counsel also pointed to the misuse of court resources if there were to be an adjournment because, if the adjournment had been sought earlier (rather than on the first day of the hearing), another litigant could have had this hearing space.

29. [206]

    Counsel for Mr Chapple adopted the submissions made for Monique (12/8/24; T 22.6). As to prejudice, reliance was placed on an affidavit affirmed 12 August 2024 by Mr Chapple’s solicitor (Christian Knox) setting out the history of the administration of the wills of Ian Sanderson and Patricia, it being said that there was litigation almost from the moment that Mr Sanderson died in relation to his estate. Emphasis was placed on the fact that Mr Chapple has a duty as executor to finalise the administration of the estates and to ensure that that is done to the best of his ability. As to the costs of any adjournment, it was noted that Robert did not respond to a letter sent to his then solicitors advising him that the executor’s right of indemnity attached to the bequests that Robert had received from Patricia’s estate.

30. [207]

    In reply submissions, Mr Wilson emphasised that the 1962 Trust Deed allowed for more than just the £10 settlement sum to comprise the trust fund, in that it allowed for monies to be paid into the trust or property settled on the trust so as further to enlarge the trust fund; and he therefore argued that was not as simple as this being just a “mere £10 trust” (12/8/24; T 24.30-35).

31. [208]

    Complaint was made that the properties should have been kept in the trust (a submission that can only be predicated on the properties having become part of the trust fund at some earlier unidentified stage). Mr Wilson submitted that, on his instructions (i.e., from Robert), it was not the case that the “estates” (i.e., presumably, the executors) were entitled to deal with what “potentially” was trust property; and in effect complained that the property has been “dealt with” and has “found its way into the hands of” the beneficiaries under those wills (12/8/24; T 25.1-5).

32. [209]

    Mr Wilson submitted that it was “not beyond hope that the trust could be an umbrella trust that captures the assets that found their way into the estates of both Ian and Patricia”, and sought the opportunity to make enquiries of Oliveri Lawyers as to whether there was documentation of instructions from Ben to the effect that Mr Duffy had made mention of a trust to him, which Mr Wilson considered would at least show some “potential corroboration” of Robert’s position. Mr Wilson said that he had been unable to make those enquiries because of potential ethical issues; referring to the separate solicitors acting for the trustees in bankruptcy (12/8/24; T 25-T 26).

33. [210]

    In that regard, Mr Wilson’s instructions were that, when Robert was represented by Mr Oliveri with his brother, Ben had received certain advice from Mr Duffy that would support the fact that there was in existence the trust that Robert was attempting to advance in this case and was in operation in relation to the property and affairs of both for Ian Sanderson and Patricia (12/8/24; T 26.7-13).

34. [211]

    As to the prejudice that would be suffered by an adjournment, Mr Wilson did not suggest that the defendants would not suffer prejudice but simply submitted that there would also be prejudice suffered by Robert if the vacation of the hearing was not granted.

35. [212]

    The principles applicable in relation to an application to vacate a hearing were not in dispute. The discretion to grant such an application must of course be exercised judicially and bearing in mind the overriding statutory purpose in s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) for the “just, quick and cheap” conduct of litigation to facilitate resolution of the real issues in dispute. As noted above, Monique referred to the principles articulated by the High Court in Aon (albeit on a different type of interlocutory application) and the matters identified as relevant in context of an application for leave to amend in Tamaya, which provide a helpful indication of the matters to be balanced on the present application.

36. [213]

    Reference was also made by Monique to the decision of Allsop P, as his Honour them was, in Richards v Cornfed (No 3) [2010] NSWCA 134 (Richards v Cornfed), where the Court (Allsop P, McColl and Basten JJA) dismissed an application for an extension of time in which to file and serve a notice of cross-appeal against orders that had been made by the District Court (the effect of that refusal being acknowledged to have the effect of preventing an insurer from contesting its legal responsibility for a verdict that was ultimately over $1m). Allsop P noted (at [42]) that the litigious process is inherently stressful for any party, in particular on an individual and referred to the description of litigation as a “costly and stressful, though necessary, evil” (citing White v Overland [2001] FCA 1333 at [4]). Having noted that the due despatch of cases of litigants was a fundamental aim of the administration of justice ([43]), his Honour went on to say that:

37. [214]

    In the present case, considering the various matters identified in Tamaya, as adapted to the particular context in which those here arise, my view in summary was (and remains) as follows.

38. [215]

    First, as to the nature and importance of the discovery of the 1962 Trust Deed to Robert’s case, while much emphasis was placed on this (particularly in terms of the time needed to undertake various enquiries and take further steps in preparation of the case for hearing), in oral submissions Mr Wilson seemed to be submitting that the case could “certainly be won” simply by reference to the Trust Deed itself “if the trust deed is looked at for what it is” and the evidence that was already available from Robert and those supporting his case as to what had been said about the existence of a trust (12/8/24; T 24.41-42). Mr Wilson submitted that, without going into the trust in greater detail and cross-referencing it to the evidence, there were “still prospects of success” in relation to assets forming both part of the estates of Ian Sanderson and Patricia “to have been and should have been kept in the trust” (12/8/24; T 24.49-T 25.5). If so, then the 1962 Trust Deed having now been discovered, the need for an adjournment was not evident – in other words, it appeared to be conceded that the case could be run (and could succeed) simply on the basis of the 1962 Trust Deed and other supporting evidence already available to Robert.

39. [216]

    Moreover, from the manner in which the submissions for Robert were couched it seemed to me clear that much of what was sought by way of further enquiries was inherently speculative (i.e., that there might potentially be information that would potentially corroborate Robert’s case), in essence being largely in the nature of a fishing expedition.

40. [217]

    Further, insofar as the application to vacate was put by reference to the very recent discovery of the 1962 Trust Deed, it was clear from Robert’s own case that the existence or potential existence of a trust of some kind had not only just come to Robert’s attention. The fact is that Robert has been asserting the existence of a trust for quite some time. Indeed, it appears on Robert’s own evidence that a forensic decision was made not to raise (either to mention or to plead) this trust claim during the course of the 2010 Proceeding or during the subsequent family provision proceeding in relation to Patricia’s estate.

41. [218]

    In that light, all that the discovery of the 1962 Trust Deed thus did was to provide Robert with documentary support (or “potential corroboration”) for his existing assertions of a trust (and perhaps to permit more focused cross-examination of defence witnesses by reference to that document). What it did not do, in my opinion, was to provide a basis for an extensive enquiry (to be undertaken in place of the sought to be vacated hearing dates) into the steps taken in 1962 when the trust was established (as indeed seems to have now been undertaken – as I explain below). Relevantly, there was nothing to prevent enquiries of that kind being made at a much earlier time by reference to Robert’s own evidence as to conversations in relation to a trust and by the reference to a trust in the Duffy Letter which had come to Robert’s attention in August 2016.

42. [219]

    Thus, even accepting that the 1962 Trust Deed has now assumed a special significance in relation to Robert’s trust claim, and hence is of importance to him in presenting his case, I did not (and do not) accept that its discovery weighs strongly in determining whether to accede to the application to vacate the hearing at the very late stage at which it was made.

43. [220]

    Second, as to the extent of the delay and costs associated with a vacation of the hearing dates, there is no doubt that there has been considerable delay in the preparation of the Equity Proceeding for hearing (as is clear from the multiple instances of non-compliance with the case management directions made in the proceedings to which reference is made in the procedural chronology above). While there was hardly a lengthy delay in the making of the application to vacate after the retainer of Mr Wilson, there is no satisfactory explanation for the delay on Robert’s part in retaining new legal representation after Mr Kable effectively ceased to act for him (which is now said to have been in May this year). Robert must certainly be familiar with the process of obtaining legal representation, having retained a succession of solicitors over the years (a number of them more than once).

44. [221]

    As to the costs associated with a vacation of a hearing, I accept that costs will inevitably be incurred by both Monique and Mr Chapple if the hearing dates were to be lost. This is of significance in circumstances where no undertaking was proffered by Robert to bear the costs thrown away (and where any such undertaking would be worthless on the present state of Robert’s financial circumstances having regard to his own evidence).

45. [222]

    Third, as to the prejudice that might be assumed to follow from the grant or otherwise of the application to vacate the hearing dates, the prejudice to the first and second defendants if the adjournment were to be granted is obvious – the continuation of the stress and expense of the litigious process (as identified in Richards v Cornfed). I have considered the issue of costs already. As to the stress of the litigation, Monique’s solicitor in her affidavit set out a number of matters that amply illustrate the ongoing stress that would be suffered by Monique if the litigation were to be further delayed. While it might be expected that Mr Chapple is not in the same position (he being a party joined in his capacity as executor and without a personal interest in the outcome of the proceedings other, perhaps, than as it might affect his right of indemnity as executor), the stress no doubt experienced by the delay in finalisation of the administration of Patricia’s estate cannot be discounted.

46. [223]

    Fourth, as to the explanation for the delay in making the adjournment application, as I have already adverted to, such an application could have been made at a much earlier time (when Robert’s penultimate solicitor in this matter, Mr Kable, ceased to carry out work for him); and it is not as if Robert was not warned of the risk that a late adjournment application might not succeed. There was no satisfactory explanation from Robert for this delay.

47. [224]

    Fifth, as to the forensic choices made in the litigation to date (and the consequences thereof), I would infer that a choice was made by Robert or his various previous sets of legal representatives not to make an application for discovery orders in the proceedings but simply to issue subpoenas to various persons (not least because the complaint as to non-disclosure by Patricia makes clear their knowledge of the availability of such a procedure). Presumably, either a choice was made not to pursue the enquiries that Mr Wilson now considered necessary for the proper preparation of the case (extensive as they appear to be) or, for whatever reason, consideration was not given to making such enquiries. Either way, it was difficult to see why the active defendants in these proceedings should be prejudiced (as they will be both as to costs and as to the ongoing stress of the proceedings) by the adjournment of the hearing for the stated purpose of making those enquiries.

48. [225]

    Sixth, as to the detriment to other litigants in the court, there is no doubt that a last minute vacation of hearing dates occupying six days of court time has meant that other matters that might have been listed during that time will not have been so listed.

49. [226]

    Finally, as to the issue of public confidence in the legal system, I refer again to the observations made by Allsop P in Richards v Cornfed; and to the entitlement of parties in the litigation process to expect that litigation be resolved with reasonable despatch. The delay in resolving the present litigation would inevitably impact not just the parties to the proceedings themselves but also the beneficiaries of the respective deceased estates (as Ms Ord’s affidavit indicates).

50. [227]

    While I recognised that there was only a short period of time that was available to Robert’s latest solicitor to familiarise himself with the material in the Court Book before the commencement of the hearing, that situation seemed largely to have been of Robert’s own making. In that regard it must be noted that Robert has had a veritable raft of solicitors acting for him during the course of the Equity Proceeding (as well as a number of barristers) and, once Mr Kable ceased to act for him, Robert must have well understood the need to engage solicitors within a time that would allow them properly to prepare for the hearing (as Kunc J was urging him to do). When the hearing was fixed in October 2023, Robert’s then legal representatives agreed that the matter was ready for hearing.

51. [228]

    Accepting that there was a volume of material to absorb in the Court Book, I did not (and do not) accept that it was beyond the capacity of an experienced solicitor (with specialist accreditation in wills and estate planning such as Mr Wilson has) to familiarise himself or herself with the material in the Court Book in the time available between acceptance of the retainer and the commencement of the hearing. Mr Wilson was first approached (on the most recent attempt to engage him) on 6 August 2024 and would surely have been well aware (or made himself aware) of the time frame available before the hearing. I also note that, on Mr Wilson’s evidence, he had twice earlier been approached to act in the matter so must have had at least a passing familiarity as to the issues raised in the proceedings. Mr Wilson chose to accept instructions to act for Robert knowing that the matter was listed for hearing to commence on 12 August 2024 and should surely have appreciated the possibility, at least, that an adjournment would not be granted.

52. [229]

    I did not (and do not) accept that it is reasonable for a litigant to wait until, in effect, the eve of a hearing (especially one listed some 10 months earlier for some six days) in order to retain solicitors and then to expect an adjournment in order to allow the case to be reformulated or supplemented by additional evidence (yet to be unearthed). The retention of a solicitor at the last minute does not guarantee that there will be an adjournment while steps are taken to prepare a case that could have been taken at a much earlier time. An application to vacate on that basis in effect seeks to present the Court with a fait accompli (see, for example, the situation that arose in Douglas v Mikhael [2024] NSWCA 89). Neither the Court nor the opposing litigants should be inconvenienced in that way. Had the late discovery of the 1962 Trust Deed truly amounted to a ‘game-changing’ event, or had it been apparent that it had been deliberately concealed rather than discovered at the last minute and voluntarily disclosed almost immediately, a short adjournment might have been warranted. However, as explained above, its discovery simply confirmed that there had been a trust in place back in the 1960s under which Robert (and Ben) were the ultimate beneficiaries. Other than speculation and hypothesis, there is nothing to suggest that the properties that Robert claims to have been held in trust for him and Ben since at least 1980 ever formed part of the trust fund established by the 1962 Trust Deed.

53. [230]

    The most compelling matter in my opinion, balancing all the above factors was and is the cost and inconvenience to the active defendants of an adjournment (including matters such as the inconvenience to Monique in terms of her employment and the cost of travel by Monique and other witnesses to Sydney for the purpose of the hearing), where such costs would almost certainly not be recovered in the immediate future (even if there is a prospect that they might be recovered out of the proceeds of a judgment in Robert’s favour on his trust or family provision claims).

54. [231]

    Balancing that against the last minute nature of the application, the ability of Robert to rely on the 1962 Trust Deed in support of his claim without necessarily undertaking the various enquiries that had been foreshadowed (as Mr Wilson himself appeared to acknowledge was the case), and the fact that Robert, on his own evidence, had been aware of the claimed trust(s) for quite some time and could have caused the enquiries now said to be necessary to have been made at a much earlier time, the active defendants put forward a compelling case for the adjournment application to be refused.

55. [232]

    For those reasons, I refused the application to vacate the hearing dates.

Application to adjourn proceedings and, inter alia, to re-open the case

1. [233]

   The hearing of the evidence and tenders of documents were completed before lunch on the fourth day of the hearing (15 August 2024). At the conclusion of Robert’s case, his solicitor applied for an adjournment in order to prepare closing written submissions, informing me (among other things) that he wished to have the opportunity to include transcript references in the closing submissions and that he had not had an opportunity at that stage to review the transcript. In circumstances where (as noted above) the solicitor had accepted instructions in the matter only shortly before the hearing, I considered it appropriate to accede to that request. I made directions for the filing of written submissions sequentially by Robert and then by the active defendants and listed the matter for closing submissions on 29 August 2024.

2. [234]

   What then transpired was unexpected (at least on my part), to say the least. On 25 August 2024, Mr Wilson served on the parties a proposed notice of motion seeking among other things a vacation of the orders made in relation to the closing submissions and, in effect, leave to reopen Robert’s case (including to issue subpoenas and to recall Mr Duffy for further cross-examination).

3. [235]

   A lengthy affidavit was sworn by Mr Wilson on 25 August 2024 in which he deposed (among other things) to having undertaken a number of enquiries and research “immediately” after the adjournment on 15 August 2024 to carry out investigations into the title to various of the Walgett Properties; to make enquiries of potential expert witnesses; and to gather evidence in relation to the case. This seems to have been done notwithstanding that by then the evidence in the case had closed and that the relatively lengthy adjournment for closing submissions had been sought and granted on the basis that time was required for preparation of written closing submissions (by reference to the transcript) (15/8/24; T 298.12-18). Indeed, the steps taken in that intervening period before the date fixed for closing submissions seem to have been of the very kind that had been foreshadowed in the unsuccessful application to vacate the hearing in the first place, though Mr Wilson disclaimed any attempt to cavil with that ruling.

4. [236]

   In oral submissions on 28 August 2024, Mr Wilson explained that, concurrently with those enquiries and investigations, he had prepared the closing submissions (though I note that those were served outside the time directed and were devoid of any transcript references) (29/8/24; T 305.38-45). A subsequent affidavit sworn by Mr Wilson on 28 August 2024 was also read on the application, together with an affidavit from Mr Oliveri (a solicitor who had formerly acted in the Equity Proceeding for Robert).

5. [237]

   In submissions in support of the application for the proceedings to be adjourned (rather than proceeding to final submissions and judgment based on the current state of the evidence and Robert’s case as currently pleaded), Mr Wilson explained that Robert sought to be permitted to replead his case “to a limited degree” (as set out in the plaintiff’s submissions which accompanied a proposed Fourth Amended Statement of Claim) and to adduce further evidence arising from additional evidence that had arisen or unearthed “following the urgent and necessary enquiries and gathering of evidence by the plaintiff’s solicitor following 15 August 2024” (my emphasis). I interpose here to note that there was no necessity to make enquiries and to gather evidence, as such, in circumstances where the parties’ evidentiary cases had already closed. Rather, it appears that Mr Wilson considered that these were enquiries and evidence gathering steps that should have been made or taken at a much earlier stage in the proceedings by one or more Robert’s previous advisers (and that he felt he owed some duty as an officer of the Court now to conduct those enquiries and steps).

6. [238]

   The “great amount” of recently discovered additional evidence sought to be adduced if leave to re-open Robert’s case were to be granted was said to have been obtained, marshalled and served with “all due expedition and dispatch bearing in mind the prevailing time constraints” ([8]). It was said that Robert’s claim was one involving difficulty and complexity to which the issues in the proceedings gave rise; and that his solicitor, when acting as trial advocate, had but a basic understanding of the plaintiff’s case when the hearing commenced on 12 August 2024. Mr Wilson deposed that, when first receiving instructions on 6 August 2024, his file was “literally the Bench Book” that Robert had just delivered around midday that day. (It should be noted that Mr Wilson did not accept instructions, and file notices of appointment as solicitor, until 9 August 2024; and his earlier evidence was that he did not receive the Court Book in documentary and electronic form until that day.)

7. [239]

   In his written submissions, Mr Wilson submitted that the issues in these proceedings were complex but that they could now be better resolved with the recently discovered additional evidence now sought to be lead, which he deposed had “only materialised throughout the 13-day period following 15 August 2024 and which concluded in the late evening on 28 August 2024 with the culmination of the interim accounting report of Nicholas Wilson which utilised much of the information obtained following 15 August 2024 and can greatly aid in understanding the financial information contained in the company returns of the Sanderson companies” ([7]).

8. [240]

   Mr Wilson submitted that the enquiries carried out on behalf of Robert “were painstaking and often at times very disappointing and frustrating, however, they were very penetrative, ultimately yielding much valuable information regarding the family history of the plaintiff’s forbears, the trust under the trust deed, why it likely arose, the 3 family companies and the genesis by which the arrangement involving the trust and the family companies came about following Jack Irwin Dent Sanderson [Ian Sanderson’s father]’s restructuring of his property holdings from 1962 onwards until 1967” ([9]). In his 25 August 2024 affidavit Mr Wilson deposed that he was not aware of any practitioner in these proceeding sharing researched title to the Sanderson Properties to good root of title [11] and that he was currently researching each title to establish good root of title from 1910 because in 1962 Jack Sanderson commenced his restricting property holdings ([12]).

9. [241]

   Mr Wilson further submitted that no other information contained in the Court Book reveals that any other lawyers undertook similar enquiries to those undertaken by Robert’s current solicitor (i.e., himself) to the same nature and extent. Mr Wilson submitted that Robert “has not had the benefit of continuous uninterrupted legal representation since the commencement of proceedings as evident by his multiple breaches of the Court’s previous timetable and orders as a litigant in person” and that, as a self-described “layman” left to his own devices, Robert had a very limited capacity to advance his case to the degree expected by the Court ([11]).

10. [242]

    As to the expert evidence sought to be adduced, Mr Wilson sought leave to qualify his brother, Mr Nicholas Wilson, an accountant, to provide a “final accounting report” and Mr Anthony Cordato, a solicitor, to provide an opinion regarding the death duties regime that was in place during the 1960s, prior to its abolition in 1979 federally and in 1981 at the New South Wales state level ([12]).

11. [243]

    The submissions made in support of the notice of motion suggested that the “multiple breaches” of directions and orders occurred while Robert was a litigant in person (which is not wholly borne out by the procedural chronology set out above) and made clear that he was seeking “a reasonable opportunity to lead the additional evidence and present his case in a fuller light” ([13]).

12. [244]

    Among the relief sought was leave to recall Mr Duffy for further cross-examination in light of information that had “come to hand” since 15 August 2024 regarding Mr Oliveri and leave to read Mr Oliveri’s affidavit (said to be relevant to the application for leave further to cross-examine Mr Duffy). Mr Wilson submitted that an unsealed subpoena to produce documents had already been emailed to Mr Oliveri ([14]-[15]).

13. [245]

    Leave was also sought to subpoena the production of documents by Mr Miller, solicitor, of Garland Hawthorn Brahe, namely, the production of the firm’s safe custody record regarding Sanderson family documents previously held in safe custody by him (again said to be relevant to the application further to cross-examine Mr Duffy). Mr Wilson submitted that an unsealed subpoena to produce documents had already been emailed to Mr Miller ([16]). As I understand the oral submissions, it is anticipated that this would disclose that the firm records indicated that Mr Duffy had had possession at some time of certain of the records pertaining to Ian Sanderson or the Sanderson Companies that are no longer held by Garland Hawthorn Brahe.

14. [246]

    Finally, leave was sought to cross-examine Mr Chapple, whose affidavit had earlier been read without objection and who had not been required for cross-examination.

15. [247]

    Mr Wilson referred to the overarching discretion under s 62 of the Civil Procedure Act, seeking an exercise of that discretion in favour of the relief sought “bearing in mind the complexity of the case, the nature and extent of the additional evidence unearthed since 15 August 2024 which is central to the case”. Mr Wilson pointed to the “prompt and effective manner in which the additional evidence was obtained and promptly shared with the solicitors for the other parties” (after, it must again be noted, the close of the case for Robert) ([18]).

16. [248]

    The application by Robert to file and serve a Fourth Amended Statement of Claim (the proposed form of which was served on the solicitors for the other parties on 28 August 2024) was said to have culminated from the additional evidence unearthed ([19]).

17. [249]

    Reliance was placed in this regard on s 64(2) of the Civil Procedure Act (and the corresponding reference in the Civil Trials Bench Book) as to the requirement that, subject to the dictates of justice pursuant to s 58 of the Civil Procedure Act, all necessary amendments shall be made for the purpose of determining the real questions raised by, or otherwise depending upon, the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings ([21]).

18. [250]

    Mr Wilson submitted that this was not a case where amendment should be refused because a party has deliberately framed its case a particular way and the opponent may have conducted its case differently had the new issues been previously raised (referring to Burnham v City of Mordialloc [1956] VLR 239; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255) ([23]). Pausing here, it is difficult to accept such a submission at least to the extent that it suggests that the defendants might not have conducted their case differently had issues concerning establishment of good root of title or tax minimisation structures been squarely raised at the outset of the proceedings.

19. [251]

    Mr Wilson further argued that the amendments in the proposed Fourth Amended Statement of Claim did not introduce any new cause of action but, rather, pleaded more accurate facts regarding the recently discovered matters. The reason put forward for seeking to replead the Statement of Claim was identified (one might think almost in terrorem) as being “so that no party be vexed with further proceedings based on the 1962 Trust Deed and the additional evidence unearthed since 15 August 2024” ([25]). Again, it is difficult to accept that all the proposed amendments are simply pleading more accurate facts, when the amendments unquestionably seek to expand the pleaded claim to real estate beyond the two specified properties (i.e., to all the Walgett Properties) and where the plaintiff’s submissions now raise issues of breach of trust by various “successor” trustees (not previously pleaded).

20. [252]

    Mr Wilson submitted that the overriding purpose of the Civil Procedure Act encapsulated in s 56 in relation to its application to civil proceedings (namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings) would be effected if the relief sought in the Notice of Motion were to be granted ([26]).

21. [253]

    Finally, Mr Wilson submitted that the arrangement involving the trust and family companies (which Mr Wilson postulates occurred in the 1960s in relation to the Sanderson family) was a popular farming succession strategy to avoid the payment of death taxes which in the top bracket was in excess of 50% of the value of an estate and notional estate. It was said that many of these structures under which family farming enterprises are conducted remain in place today throughout Australia as the arrangement involving company shares held under a trust are capital gains tax neutral. It was submitted that the determination of these proceedings “particularly if repleaded with the additional evidence” would not only be an important outcome for the parties to this litigation but also to the wider community, including those families in the farming community throughout Australia who still conduct their farming enterprises under such an arrangement ([27]-[28]).

22. [254]

    Monique opposed the application, relying on an affidavit sworn 29 August 2024 of her solicitor Ms Ord, in which Ms Ord deposes that, had Robert raised claims in relation to the property known as Wangrawally (which was owned by Gidgerygah P/L) at an earlier stage, steps would have been taken to investigate and respond to that claim, including: seeking disclosure from Robert and potentially the other defendants concerning this claim; issuing subpoenas to relevant third parties seeking production of documents concerning this claim; potentially leading lay evidence concerning this claim, including from Trevor when he was alive; and potentially cross-examining Messrs Chapple and Duffy about these matters ([5] of the affidavit sworn 29 August 2024 by Ms Ord).

23. [255]

    Ms Ord also deposes that the proposed Fourth Amended Statement of Claim refers to a family law affidavit sworn by Patricia on 7 March 1996, which had not been previously disclosed by Robert in these proceedings (pointing out that no explanation has been provided as to when Robert obtained this affidavit). Ms Ord deposes that, had this been disclosed earlier, consideration would have been given to seeking disclosure from Robert of any related documents Robert has, or seeking access to the family law file ([6]).

24. [256]

    Pausing here, I note here that s 114Q of the Family Law Act 1975 (Cth) proscribes the communication to the public of any account of family law proceedings which identifies any party, related party, any person who is any way concerned with the proceedings or any witness to those proceedings. Section 114S creates an exception to this prohibition in circumstances where the communication is made in connection with proceedings in a court to a person concerned in those proceedings. There was no consideration of the import of this prohibition on the current application.

25. [257]

    Mr Chapple adopted the submissions for Monique on this application.

26. [258]

    The principles applicable on this application are in essence those that were considered in the application to adjourn the hearing date. As already indicated, in a sense the application made by the 25 August 2024 notice of motion was tantamount to an application to revisit the conclusion reached on 12 August 2024 (though Mr Wilson denied any intention to cavil with that earlier ruling), insofar as the purpose of both applications was to enable additional evidence to be adduced (in the first place, evidence that was to be the subject of enquiries to be undertaken if the hearing date was vacated; on the second occasion, evidence that had been “unearthed” following enquiries immediately undertaken when the matter was adjourned allow for the preparation of written closing submissions).

27. [259]

    Insofar as the application on 29 August 2024 was effectively to revisit the ruling on 12 April 2024 in respect of the adjournment motion, as counsel for Monique submitted (and I agree) there was no change of circumstances between then and the 29 August 2024 application to bring the matter within the principles in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44.

28. [260]

    Other than in one respect, I dismissed the application. The one respect in which I granted relief was in the application made in relation to evidence sought to be obtained from Mr Oliveri, the subject of a subpoena which had been issued on 12 August 2024. I will come back to this aspect of the notice of motion shortly.

29. [261]

    As to the balance of the application (relating to leave to adduce additional evidence, including expert opinion evidence, to recall Mr Duffy, and to issue a subpoena on any solicitor holding or once having held any documents described in a draft subpoena attached to Mr Wilson’s affidavit), and consequential relief sought as to the conduct of the proceedings, my reasons for dismissing the application were as follows.

30. [262]

    The most compelling matter against the grant of the relief sought was that the additional evidence sought to be adduced (and that which it was sought to be obtained through experts and by issuing subpoenas) was all evidence that could have been obtained at a much earlier stage in the proceedings had there been a decision made, or consideration given, to obtaining such evidence at that stage.

31. [263]

    I accept that Mr Wilson appears to have diligently conducted extensive enquiries and research in the time since 15 August 2024 to “unearth” the evidence relating to the real property titles and company records now sought to be put into evidence (and that no previous legal representative might have undertaken such a task). However, that is not to the point. This is not evidence that is “fresh” evidence in the sense in which that term is understood in the litigious context. Much, if not all of it, is publicly available evidence that could have been obtained prior to the hearing (such as the historical company records). Mr Wilson accepted that the new evidence was not fresh evidence and (see Smith v NSW Bar Association (No 2) (1992) 176 CLR 256) it could have been the subject of enquiries at a much earlier time.

32. [264]

    This, and the expert evidence (which also could have been sought prior to the discovery of the 1962 Trust Deed), was sought to support the thesis for which Mr Wilson now seeks to contend, namely that the 1962 Trust Deed was part of an intergenerational succession plan (or direct “bloodline” trust) and hence to support his argument that the Walgett Properties were at all relevant times held as part of the trust fund established by the 1962 Trust Deed (and that there was a breach of trust – not yet pleaded – by the trustee of that trust, namely Ian Sanderson, and by the subsequent executor and trustee of his estate, Patricia, in dealing with the properties inconsistently with that trust). This thesis is based on speculation having regard to the incidence of death duties back in the 1960s (hence the opinion sought from Mr Cordato on that issue and how structures were commonly put in place to avoid such duties) and in part on an analysis of historical company records (for example as to the reporting of no income by the entities who were the registered owners of the properties).

33. [265]

    This thesis seems then to be translated into factual assertions in the proposed Fourth Amended Statement of Claim as to matters such as the capacity in which Ian Sanderson received the controlling shares of the Sanderson Companies (i.e., it being said to be as the trustee for and on behalf of the 1962 Trust). This is not the subject of any direct evidence as I apprehend it; and it is inconsistent with the company annual returns which disclose that the shares are beneficially held. Assertions are also made in the proposed amended pleading that land was settled on the trust fund of the 1962 Trust or transferred to various of the Sanderson Companies “on behalf of the 1962 Trust” and that none of the Sanderson Companies has made good any purchase moneys to the 1962 Trust at any time (and those moneys remain fully owing as a debt due and payable to the 1962 Trust together with interest thereon accumulating from the date of purchase. This seems inconsistent with the notion that the lands were assigned to the Companies to be held on behalf of the Trust – in that the argument seems to be that the Companies were required to purchase properties from the trustee of the 1962 Trust in order to hold them on trust for that very trust. The commercial benefit of that to the Companies is questionable to say the least.

34. [266]

    The proposed Fourth Amended Statement of Claim also proceeds on the basis that, on the deaths of each of Ian Sanderson, Patricia and Trevor, the legal personal representative of the respective deceaseds’ estates became (and remained until her or his death) a successor trustee of the 1962 Trust and that none had any beneficial interest or other right to deal with any property of the Sanderson Companies “and hence the 1962 Trust unless in accordance with the 1962 Trust Deed”. I discuss this in due course.

35. [267]

    The significance of the proposed amendments is that the proposition appears now to be not that the properties were held on trust by the respective Sanderson Companies for Robert and Ben (as currently pleaded) but, rather, that the properties were held on trust by the Sanderson Companies “for and on behalf of the 1962 Trust” (of which Ian Sanderson was initially the trustee) and that Robert and Ben are the “absolutely entitled beneficiaries under the 1962 Trust Deed”. Further, what is sought by the proposed amended pleading is to run a new case on a number of fronts, including allegations of breach of fiduciary duty in relation to distributions made out of the respective estates.

36. [268]

    The assertion by Robert that the trustees failed properly to do their job (29/8/24; T 332.35) by failing to ensure that “trust records remained visible and the trust also remained visible” so the trust and its property could be separated from the “various deceased estates that would inevitably arise” again begs the question whether these properties ever became property of the trust (and no such failure by the trustees is pleaded).

37. [269]

    Having regard to the relevant matters considered in relation to the first adjournment application applied to the second adjournment (and re-opening/amendment) application, I was of the following view.

38. [270]

    First, as to the nature and importance of the evidence sought to be adduced, the historical property titles and company financial or accounting records are sought to be relied upon for the contention that the Walgett Properties were held in trust pursuant to the terms of the 1962 Trust Deed. The importance of that contention to the new case that Robert now seeks to establish is not entirely clear (since it appears to rely on inferences to be drawn from accounting records and the like). There does not, however, appear to be any direct evidence that the properties were “tipped into” the 1962 Trust as Robert now contends. As to the proposed amendments sought to be made to the pleadings, these largely depend on the additional evidence being permitted to be adduced. Insofar as one of the documents unearthed and sought to be relied upon was a deed of assignment whereby Jack Sanderson assigned his interest in properties to Sanderson Estate, counsel for Monique noted that this was stated to be a sale for consideration, with the receipt of money being acknowledged; and that the shares in Sanderson Estate were recorded in its records as beneficially held. Hence this does not support the trust assertion. (Insofar as the proposed draft pleading included a claim for money recorded as a debt owing to the companies in relation to the transfers, no such claim was pleaded before – and it would seem to be inconsistent with the transfer itself giving rise to a trust.)

39. [271]

    As to the expert evidence, as adverted to above it seems to me to be inherently speculative insofar as it relates to the position in respect of death duties in 1962. What may or may not have been commonly done to avoid death duties says nothing about whether it was done in this case. The proposed expert accounting evidence seems largely to relate to an analysis of the historical financial and accounting records of the relevant companies and it is not clear to me that expert evidence would be required to make submissions as to those matters. I was not persuaded that this was a matter weighing heavily in support of the applications made in the notice of motion.

40. [272]

    As to the submission (see 29/8/24; T 331) that there was no documentary evidence to show that the trust (“a relationship with those companies capturing the landholdings of the family”) was “closed down” at any stage, first, there is no evidence of a trust “capturing” the family landholdings and, second, if there was a trust along the lines of that established by the 1962 Trust Deed which encompassed the landholdings, its terms expressly permitted the distribution of capital to Patricia (and hence permitted the trustee to “chase the turn down”). No deed of forgiveness (as suggested by Mr Wilson) was required to effect this. In essence, assuming the properties ever became part of the trust fund, that is what was done: the trustee under the 1962 Trust Deed (Ian Sanderson) treated these properties as his own and bequeathed them to Patricia under his will. In a loose sense, that might be seen as a distribution of the capital of the trust (even assuming the properties ever became impressed with a trust – which is by no means established even on the documentary evidence on which Mr Wilson ultimately sought to rely).

41. [273]

    Mr Wilson frankly accepted (29/8/24; T 332.24) that there was no evidence “on file” recording that the Sanderson companies were set up in order to avoid the imposition of death duties. However, he submitted it should be inferred from the fact that when the 1962 Trust Deed was created when the settlor was near the age of the average life expectancy for an Australian male. With respect, this is heaping speculation on speculation. The fact that a possible narrative could be fashioned to explain the incorporation of the Sanderson Companies shortly after the establishment of the trust under the 1962 Trust Deed (by reference to a desire to avoid the incidence of death duties) does not by any means establish that this was the case; nor does it establish that the properties themselves ever became subject to the trust.

42. [274]

    As Mr Wilson himself acknowledged, one may not be able to take the evidence that has been “unearthed” any higher than a submission as to the reason these companies came about (see 29/8/24; T 332.17).

43. [275]

    Second, as to the extent of the delay and costs associated with the second application, these matters strongly weighed in favour of refusing the application. The evidence could have been sought at a much earlier time (as noted already). While the costs associated with an adjournment at this stage of the hearing would presumably not have been as great as at the time of the initial adjournment application, there would be costs inevitably flowing from the need to prepare for the re-opened hearing and to meet the additional evidence (as indicated in Ms Ord’s 29 August 2024 affidavit).

44. [276]

    Third, as to the question of prejudice, the same prejudice in relation to the ongoing delay in finalising the proceedings (and cost and inconvenience associated with this) would flow from the application being granted.

45. [277]

    Fourth, as to the explanation for the delay in relation to the application to adduce the additional evidence and the like, none was directly proffered. The real explanation seems to be that the incoming solicitor, Mr Wilson, has engaged in a process of extensive enquiries because of his view that these are the steps that ought to have been undertaken in preparing the matter for hearing in the first place but without focusing on the stage at which those enquiries commenced (i.e., after the close of Robert’s case). None of the additional evidence is “fresh” evidence; and all these enquiries could have been made prior to the hearing. The active defendants were entitled to come to Court to meet the case that was pleaded against them and on the basis of the evidence that had been adduced in support of that case; not to meet (on the run) a new case based on additional evidence that might have been unearthed by enquiries made after the close of Robert’s case (and at a time when the expectation was that closing submissions would be prepared on the basis of the evidence as it was).

46. [278]

    Fifth, as to the parties’ choices to date in the litigation and the consequences of those choices, I make the same comments as made in relation to the earlier application and in the preceding paragraph.

47. [279]

    As to the detriment to other litigants in the court, this has less weight where the adjournment is simply of the one day fixed for further submissions, although of course the need to schedule resumed hearing dates would be of inconvenience to the Court and other litigants in terms of on-going listings.

48. [280]

    Finally, as to the issue of public confidence in the legal system, in my opinion points even more strongly against the adjournment sought, in circumstances where an application to adjourn the hearing in order to make enquiries and obtain evidence was refused on 12 August 2024 and the same application (albeit in a different guise) has then come back before the Court. It is important to note that the adjournment which was sought, and granted, at the close of the parties’ evidence was not for the purpose of making enquiries as to further evidence (to strap up or expand the existing case) but, rather, to prepare closing submissions. There was no adequate explanation or justification for the subsequent adjournment application in those circumstances.

49. [281]

    Insofar as reliance was placed on the requirement under s 64(2) of the Civil Procedure Act that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, this must be read subject to the overriding purpose specified in s 56 of the Civil Procedure Act (and s 58 of that Act) as Robert in his submissions accepts. Contrary to the submission made for Robert, in my opinion the just, quick and cheap resolution of the real issues in dispute in the proceedings would not be effected (let alone facilitated) by an application of the kind that was then made (in effect, to reopen the litigation after the hearing of all the evidence in order to replead a new case that has been “unearthed” by enquiries seemingly only thought of on the eve of the dates fixed for hearing by a newly retained solicitor and commenced after the close of evidence; no matter how prompt and diligent those enquiries may have been). The interests of justice require a procedurally fair hearing for all parties (not a Rolls Royce extravaganza at the heel of the hunt, if I may be permitted shamelessly to mix metaphors in this fashion).

50. [282]

    Balancing all those matters and having regard to the conduct of the proceedings both before and after the hearing, I dismissed the notice of motion filed on 26 August 2024 other than in one respect.

51. [283]

    As indicated above, the one respect in which in effect I allowed the relief sought in the notice of motion was that relating to the subpoena sought to be served on Mr Oliveri. Some further background is necessary in order to explain this.

52. [284]

    On 12 August 2024, in the course of the first application to vacate the hearing, Mr Wilson referred to potential ethical difficulties in approaching Mr Oliveri to obtain documents relating to advice that may have been given to Ben in relation to the alleged trust (12/8/24; T 25.46). I queried why Robert would not be entitled to have access to Mr Oliveri’s file in relation to the court proceedings if, as I understood to be the case, Mr Oliveri was acting as Robert’s solicitor in the proceedings at the relevant time. I gave leave for a subpoena to be issued, abridging the time for service of the subpoena, and requiring production of documents in answer to the subpoena by 4pm on 13 August 2024.

53. [285]

    Two packets of documents were duly produced in answer to the subpoena: one containing one document over which no claim for privilege was made; the second, containing a number of documents identified as subject to legal professional privilege. First, access was given to Ben’s trustees in bankruptcy of those documents and the following morning at 9am a claim for privilege was made in Court by Ms Peterson, the solicitor representing the trustees in bankruptcy (although not formally appearing for them in the proceedings as no leave had been sought or granted for the proceedings to be pursued against Ben as an undischarged bankrupt). Mr Koch (14/8/24; T 187.48-T 188.3) raised the inability of one party to waive privilege that was jointly held. I considered that that was an issue that would arise if and when an application was made to adduce the evidence at the hearing but would not preclude Robert from having access to the documents that had been produced if he had retained Mr Oliveri at the relevant time.

54. [286]

    However, an issue was then raised as to whether Mr Oliveri had jointly acted for Robert and Ben at the relevant time. Mr Wilson’s instructions were that between 2017 and 2019 Mr Oliveri represented both Ben and Robert up until there was a parting of ways between Ben and Robert (14/8/24; T 185). The material produced (by reference simply to the list of documents provided) included file notes of two conferences in 2019. (Mr Wilson indicated that his understanding was that in 2011, following the death of Ian Sanderson, Ben sought advice from Mr Duffy in relation to the estate and he had some concerns in relation to what would happen with the estate in terms of Ian Sanderson’s will, and whether there was risk of the property passing to somebody outside of the family and that was the advice that he sought from Mr Duffy in 2011; and that Mr Duffy gave him some advice in relation to that, which was then passed on to Mr Oliveri, that was relevant to these proceedings.)

55. [287]

    The list of the documents produced included a file note of 14 May 2019, handwritten notes, and a draft affidavit in February 2020 (relating to Ben’s 2019 proceedings), as well as draft file notes, observations, and affidavits of Ben. On that description it appeared to me likely that legal professional privilege would attach to those documents; the question being whether the privilege was joint, such that Robert would be entitled to have access to the documents. Counsel for the trustees in bankruptcy agreed that if it were established that the retainer was joint (at the relevant time) then Robert would be entitled to have access to the privileged documents (even though he would not be able to waive privilege in order to tender those documents or put them into evidence in some way without the consent of Ben).

56. [288]

    There was a short adjournment for Mr Wilson to obtain instructions and for Mr Oliveri to be contacted to clarify the position, following which I was informed by Mr Koch (14/8/24; T 191) that Mr Oliveri had confirmed that Ben engaged Mr Oliveri solely at the beginning of 2019; and that Robert did not engage Mr Oliveri until the end of 2020. Mr Wilson said that Ben revoked Mr Oliveri’s retainer in December 2020. On that basis it appeared clear that the documents the subject of the claim for privilege were produced during the course of the sole retainer by Ben of Mr Oliveri and I refused Robert access to the privileged documents.

57. [289]

    What happened after the close of the evidence in the case (as I later learnt) was that Robert contacted Mr Oliveri directly and that conversation led to Mr Oliveri then contacting Mr Wilson to give a different account of who he was acting for in the proceedings (which led to Mr Oliveri’s 26 August 2024 affidavit). I considered that since this changed the basis on which I had refused Robert access to the subpoena documents (and had arisen through no fault of Robert after the close of his case albeit apparently at his bidding, so to speak), the appropriate order was to permit Robert access to the documents and allow his case to be re-opened for the sole purpose of tendering any documents from the privileged file (provided that Ben’s trustees in bankruptcy consented to the waiver of privilege). That occurred and a few paragraphs of some of the documents were ultimately admitted (as Ex K). I consider the import of those documents in due course.

58. [290]

    Other than in that regard, I dismissed the notice of motion filed 26 August 2024.

Equity Proceeding

1. [291]

   Turning then to the pleaded claims in the Further Amended Statement of Claim filed pursuant to leave granted by Hammerschlag CJ in Eq on 22 March 2022, which is the operative pleading in view of my refusal of the last minute amendment application, the following allegations are made.

2. [292]

   First, as to the part Barwon Vale property, the registered owner of which was Sanderson Estates, it is alleged that at all material times “from at least 25 September 1980”, Sanderson Estates held that property upon trust pursuant to a trust deed pursuant to which Sanderson Estates was the trustee with power during Patricia’s life to accumulate income and make discretionary payments of capital and, upon her death to pay the capital out to Robert and Ben ([11]).

3. [293]

   In the alternative to [11], it is alleged that, from in or about 1980, Sanderson Estates, as corporate trustee, has held part Barwon Vale registered in its name on trust for Robert and Ben as beneficial owners (that trust being particularised by reference to the disclosure and acknowledgment of “the trust” by Ian Sanderson, Robert expressly relying on his 2021 Affidavit at [30], [32], [46] and [51] and to the affidavits sworn on the same date by Tracy Wilcox at [11] and Stuart Wilcox at [16] and [19] respectively). The particulars to [11A] state that further particulars may be provided following the giving of disclosure (though no disclosure order was sought and no further particulars appear to have been provided).

4. [294]

   In the premises of [11] and [11A], it is alleged that: at all material times Sanderson Estates has held part Barwon Vale on trust for Robert and Ben as tenants in common in equal shares and Patricia had no beneficial interest in the property; that Ian Sanderson held no beneficial interest in the property; and that Sanderson Estates as trustee of the trust is liable to account to Robert and Ben for such benefits as it has received since the death of Patricia referable to the property.

5. [295]

   As noted earlier, counsel for Monique had indicated that no issue would be taken if Robert sought to amend his pleading in order to “align” it with discovery of the 1962 Trust Deed; i.e., to plead an alternative claim based on the alleged trustee being Ian Sanderson, rather than the companies holding title to the properties the subject of the claim (part Barwon Vale and Gidgerygah). Although no such amendment was pressed by Robert, I have approached the matter as if the identity of the trustee is the relevant company (Sanderson Estates) or, in the alternative, Ian Sanderson. However, there was certainly no acquiescence in any other departure from the pleaded case.

6. [296]

   Similar allegations are made in relation to the Gidgerygah property (at [14] and [14A] respectively, corresponding to [11] and [11A]), save that the trustee is identified as I.F. Sanderson, with corresponding particulars save that it is asserted in particular (a) to [14] that the trust was established by Ian Sanderson in his capacity as director of I.F. Sanderson. (Particular [14](a) suffers from the temporal problem that I.F. Sanderson was not in existence at the time that the 1962 Trust Deed was executed, and therefore if the allegation is now to be understood as a reference to the 1962 Trust Deed then the trust cannot have been established by Ian Sanderson as a director of I.F. Sanderson.)

7. [297]

   Paragraph 15 of the Further Amended Statement of Claim makes similar allegations as to the holding of Gidgerygah on trust for Robert and Ben and that neither Patricia nor Ian Sanderson had a beneficial interest in the property.

8. [298]

   Further or in the alternative to [11] and [11A], it is alleged that, from at least 25 September 1980, Ian Sanderson’s shares in Sanderson Estates were held on trust for Robert and Ben, with Ian Sanderson nominated as trustee ([16A]). The particulars of trust set out at [16A] refer again to the Duffy Letter and the affidavit evidence referred to in the particulars to [11]. At [16B], it is alleged that, pursuant to the trust referred to in [16A], Ian Sanderson’s shares in Sanderson Estates were to be transferred to Robert and Ben as tenants in common in equal shares on Patricia’s death; at [16C], that after Patricia’s death Ben received all of Patricia’s interests in Sanderson Estates; and at [16D] that Robert is the beneficiary of 50% of the share capital in Sanderson Estates and Ben thus holds his 50% of the share capital on trust for Robert. Transfer of 50% of the share capital and an account for 50% of the income derived by Ben from that shareholding since August 2016 are also sought ([16E]). For the reasons identified earlier, this claim cannot now be pursued against Ben and must be dismissed.

9. [299]

   The final issue raised in the pleading relates to the 2010 Proceeding and subsequent appeal proceeding. A string of allegations is made from [20A] as to a failure of Patricia to disclose (as defendant and/or as executor of Ian Sanderson’s estate) various matters: at [20A], the existence of the trusts alleged at [11], [11A], [14], [14A] and [16A] (and that she positively asserted that Ian Sanderson had left the real property disputed in that proceeding to her); at [20B], the contents of the Duffy Letter (wrongly referred to as being dated 24 September 1980), namely that “her interest in Sanderson Estates Pty Ltd of the registered proprietor to the property part ‘Barwon Vale’ was held pursuant to a Deed of Trust” on trust for Robert and Ben as to capital; and at [20C] the conversations to which she was allegedly a party which disclosed the existence of a trust (as set out in the paragraphs of the affidavits to which reference is there made). At [20B] and [20C] the allegations are framed in terms that Patricia “should have but failed to disclose” those matters in the 2010 Proceeding.

10. [300]

    It is alleged at [24] that the non-disclosure by Patricia in the 2010 Proceeding of the Duffy Letter and the matters referred to in [20A] and [20C] amounted to a lack of good faith and/or fraud for the purposes of Pt 36.15 of the UCPR.

11. [301]

    At [25], it is alleged that the non-disclosure by Patricia and subsequently her executor (Mr Chapple) in the Court of Appeal proceeding of the contents of the Duffy Letter and her knowledge of the trusts (as pleaded at [20B] and [20C]) amounted to a lack of good faith for the purposes of Pt 36.15 of the UCPR and fraud; and that Mr Chapple is the proper defendant to set aside the 2010 and Court of Appeal “proceedings” (presumably this is meant to be a reference to the judgments in those proceedings).

12. [302]

    At [26] it is alleged that the costs orders made by Pembroke J in the 2010 Proceeding ought be set aside and that Mr Chapple and/or Trevor ought be liable for the whole of Robert’s costs of the 2010 Proceeding.

13. [303]

    The Further Amended Statement of Claim filed pursuant to leave granted on 22 March 2022 was signed by Mr Ammer of Piper Alderman as solicitor on the record at that time.

14. [304]

    The active defendants by their defences (Mr Chapple’s defence filed 31 July 2024; Monique’s defence filed 19 June 2024), apart from denying the substantive allegations in Robert’s trust claim, plead in response to the whole of the claim: first, that the claim was the subject of a release (see [27](a)-(i) of Mr Chapple’s defence; [30] of Monique’s defence); second, that the claims are time barred (see [27](j) of Mr Chapple’s defence; [42] of Monique’s defence) by reason of statute or, in Monique’s defence by analogy in equity or by reason of laches; and, third that the claimed are barred by res judicata or cause of action estoppel (see [28](a)-(e) of Mr Chapple’s defence; [33C] of Monique’s defence) or Anshun estoppel ([39]-[41] of Monique’s defence).

Issues

1. [305]

   The issues thus arising in the Equity Proceeding, in the order in which I intend to approach them, are:

Evidence

1. [306]

   Robert was the principal witness in his case. Four affidavits of his were read: affidavits sworn 13 December 2021 and 21 August 2023 filed in the Equity Proceeding; and 4 September 2023 and 17 November 2023, filed in the Family Provision Proceeding. As adverted to above, also in evidence (exhibited to his 2021 Affidavit) was Robert’s affidavit sworn 4 July 2011 which was filed and read in the 2010 Proceeding.

2. [307]

   Robert was cross-examined over the course of the first two days of the hearing (and subsequently recalled briefly for cross-examination on 15 August 2024 after the additional evidence was admitted from the documents produced on subpoena by Oliveri Lawyers).

3. [308]

   Robert also called evidence from members of his family (his uncle Stuart Wilcox and his aunt, Tracy Wilcox, each of whom swore an affidavit on 13 December 2021 and was briefly cross-examined); and his third cousin, Lionel (known as Douglas) Bucknell, who swore an affidavit also on 13 December 2021 and was also briefly cross-examined.

4. [309]

   I summarise that evidence below.

5. [310]

   Robert’s evidence went to matters of family history, his alleged conversations with his grandfather, Ian Sanderson, and others as to the farming properties and Ian Sanderson’s intentions (testamentary or otherwise) in relation to those properties, and subsequent events, including matters relevant to his claim for further provision out of Trevor’s estate. At the outset, I note some features of Robert’s various affidavits.

6. [311]

   First, that there is substantial overlap in some of the conversations to which Robert has deposed first in his 4 July 2011 affidavit (the 2011 Affidavit) and later in his 2021 Affidavit, though in cross-examination he denied having prepared the latter affidavit by reference to the former. In this regard, Monique in her submissions has drawn attention to the substantively identical accounts given in the 2011 Affidavit as compared to the 2021 Affidavit, in the following paragraphs of the respective affidavits: [20] cf [24]; [26] cf [31]-[32]; [28] cf [33]; [38] cf [46]; [41]-[43] cf [50].

7. [312]

   Second, that there are a number of conversations to which Robert deposes in his 2021 Affidavit that were not included in his 2011 Affidavit (significant in that the more recently included conversations make references to conversation about a trust and as to matters concerning Patricia that cannot now be contested by those who are now deceased but were alive in 2011).

8. [313]

   Third, that there are aspects of Robert’s evidence that appear to have changed as between his 2011 Affidavit (sworn in support of his claims in the 2010 Proceeding, including his claim to provision out of Ian Sanderson’s estate) and his 2021 Affidavit (sworn in support of his claim for provision out of Trevor’s estate), relating to where he was residing at various times, relevant to the assertion now made that he was a member of Trevor’s household and dependent on him.

9. [314]

   I will return to those matters when considering Robert’s credibility as a witness.

10. [315]

    Robert’s principal affidavit in the present proceedings is his 2021 Affidavit, sworn obviously enough before the commencement of the Family Provision Proceeding. In that affidavit, Robert’s occupation is noted as “tree lopper”. Robert deposes to his family background and the incorporation details of the Sanderson Companies, that he and Ben ceased being on amicable talking terms on or about 10 February 2021; and to the two letters by Mr Duffy in 1980 (see above). Robert then deposes to his private boarding school education (which in re-examination he explained was up to year 10) (the “vast majority” of the fees for which he says were paid by his grandfather); and at [24] to a conversation with his grandfather in which he says his grandfather told him that attending an agricultural college in Longreach focussing on pastoral agriculture would be good for Robert “when you take over the running of this place”. This conversation repeats word for word that set out at [21] of the 2011 Affidavit.

11. [316]

    Robert sets out through this affidavit where he worked and resided from time to time, which I consider in due course. Relevantly, for present purposes, I note the following conversations in which Robert attributes statements to his grandfather about the properties being in a trust or that the properties would be his one day.

12. [317]

    At [30], Robert refers to a meeting in or around 1988 in Sydney between Ian Sanderson and his accountant, Mr Stephenson, in which he says that his grandfather said words to the effect “lucky the properties are in a trust if anything happens to me”. Robert says that his grandfather signed some paperwork but he was not privy to what it was. (Little weight can be placed on a document that was not only not in evidence but not even seen by Robert at the time.)

13. [318]

    At [31], in a conversation identical to that in the 2011 affidavit (even down to the word “etc”), Robert says that his grandfather said to him “[t]his will all be yours one day” when Robert was complaining that he could hardly pay his bills on the money that his grandfather was paying him.

14. [319]

    At [32], in a paragraph that does not appear in the 2011 Affidavit, Robert deposes that “during this time” (in context most likely a reference to the period between 1986 and 1993 but which Robert in cross-examination maintained referred to “[a]ny of the 45 years I worked for him” (12/8/24; T 55; and see 12/8/24; T 56)) which he said was from a child until he was 45 but then, faced with the inconsistency that he turned 45 in 2011 at a time when he was clearly not working full-time on the properties and his grandfather had died, Robert said “during this time” meant before 2006 (12/8/24; T 56). Robert was adamant this meant “the whole time I’m working and living in his [his grandfather’s] household under his protection” (12/8/24; T 57.23) (an answer to an extent, inconsistent with his assertion now as to his dependence on Trevor during any period before Ian Sanderson’s death), his grandfather mentioned to him that the properties were in a trust of which he and Ben were the beneficiaries, and that his grandfather did this by saying “these properties are in a trust for you and your brother” ([32]).

15. [320]

    Robert deposes that at the time he did not understand in a meaningful way what a trust was but that his understanding at the time was that it meant that the “Properties” (defined in the affidavit as the land the subject of these proceedings, i.e., part Barwon Vale and Gidgerygah) would be left to Ben and himself when his grandfather died (i.e., a reference to a testamentary trust) ([32]). (I note that Robert’s understanding of what his grandfather said would be relevant if at all only to issues relating to detrimental reliance on such a promise or representation – a claim already dismissed in the 2010 Proceeding.)

16. [321]

    At [33], Robert deposes that in about 1987, his grandfather said to him “all this country will be yours and your brother’s one day” (again a conversation identical to that in the 2011 Affidavit). At [34], Robert deposes that his grandfather often said words to the effect “you never leave women country because you are leaving it out of the family”.

17. [322]

    At [36], in a conversation not included in the 2011 Affidavit, Robert deposes to a conversation at Allawa, when his grandparents and parents were present, about the purchase by Ian Sanderson of a property “Uno”, in which Robert says Patricia said words to the effect “we won’t put it in the trust for you two then and just leave it for your brother”, to which Robert says he responded “you are just dirty because it is in a trust for Ben and me” and that his mother said “How do you know about that?”.

18. [323]

    At [37], Robert deposes to a conversation in around 1992 at the Walgett show between Ian Sanderson and a friend of his, Mr Geoff Holcombe, in which Robert says Mr Holcombe said that “Pat says she owns all the properties” and Ian Sanderson responded “Pat won’t own anything; they are going to the boys”. Pausing here, this is inconsistent with Patricia knowing at the time that the properties were already held in trust for her sons; and with Ian Sanderson having such a belief (since the words attributed to him speak in the future tense).

19. [324]

    At [40], in another conversation not appearing in the 2011 Affidavit, Robert deposes that, a few weeks after Linda Sanderson died, his grandfather said words to the effect that he was furious with Patricia and that “I know what she is trying to do. She is trying to get me to give the place to her rather than you two boys”.

20. [325]

    At [45], in yet another conversation not appearing in the 2011 Affidavit, Robert deposes to a telephone conversation with his mother when he was in the Northen Territory in around 2000 in which he says his mother said “I had to tell them [Trevor and Trevor Bridger] that I did not own the properties and that they were in a trust for you boys”.

21. [326]

    At [46], in a conversation that is in substance identical to that included at [38] in the 2011 Affidavit, Robert deposes to his grandfather being disparaging of Patricia’s ability to “run anything” and saying that “[i]f I leave it to your mother, Trevor and his family could leave her and get half the station or if he ran it, it could go broke. I want you boys to get married and carry the place on like it should be”. Again, this is inconsistent with the notion that the properties were already held in trust for the boys.

22. [327]

    From [48]-[49], Robert deposes to the “purported” execution by Ian Sanderson in 2002 of a Power of Attorney in favour of Patricia and his 2002 Will (the validity of both of which he disputes). I discuss this evidence in due course. Suffice it for the moment to note that Robert’s reference in his affidavit and the material exhibited thereto to communications with Mr Davie (one of the witnesses to the 2002 Will) was highly selective.

23. [328]

    At [50], Robert deposes to a conversation (in largely identical terms to one recorded in his 2011 Affidavit) in August 2004 with his grandfather after he had repaired a windmill on the Properties (the repair of a windmill being something both Patrica and Trevor denied in the 2010 Proceeding), in which Robert deposes that his grandfather said that he would be “good at running this place”.

24. [329]

    Then at [51], in a conversation not appearing in the 2011 Affidavit, Robert says that his grandfather told him that his mother could not be trusted (as she had given a Landcruiser he had given her to Trevor) and that “[t]hat’s why the properties are in a trust to you and your brother as your mother can’t be trusted; she will just give anything away”.

25. [330]

    At [54], in another conversation not recounted in the 2011 Affidavit, Robert deposes to his grandfather having denied that he gave Patricia a Power of Attorney.

26. [331]

    At [61], as extracted earlier Robert deposes that he did not mention the trusts in his 2011 Affidavit on advice from his solicitor not to do so. This is significant, as adverted to earlier, because it is premised on Robert having had sufficient recollection of the trust conversations at that stage to have given rise to whatever discussion he had with his then solicitor so as to lead to the advice not to mention them being given to him. It also belies Robert’s evidence in cross-examination that he had not read his 2011 Affidavit when preparing his 2021 Affidavit (to which the earlier affidavit was exhibited). I refer in due course to the contradictory evidence given by Robert as to by whom and when advice was given as to the issue of a trust. At [61], the advice not to mention “the trusts” is attributed to Mr Macaulay in the context of the 2010 Proceeding.

27. [332]

    Then, after recounting matters relating to the 2010 Proceeding and the appeal therefrom, Robert deposes that in about the middle of 2015 he received a call “out of the blue” from a solicitor (Mr Miller) of Garland Hawthorn Brahe to discuss bringing a claim against Patricia’s estate ([85]). Robert deposes that he told Mr Miller that he thought the “Purported POA” and the “Purported Will” were false but that Mr Miller informed him that it would be too difficult to prove such assertions “and so those claims were not made in the Patricia Proceedings” ([90]). In cross-examination Mr Miller is one of the solicitors that Robert recalled had advised him not to mention the trusts. Robert says the first time he received “formal advice” about trusts was from Mr Miller (12/8/24; T 54.23).

28. [333]

    As also adverted to above, Robert deposes that in about August 2016, Ben called him and told him about the finding of the Duffy correspondence and that he drew this to Mr Miller’s attention in 19 September 2016, who advised him by email that he did not understand the significance of the letters ([93]-[94]). Robert deposes to a conversation with Mr Miller to the effect that he, Robert, asked whether that meant that there was a trust and Mr Miller said “[e]ven so, it is too late” ([95]).

29. [334]

    Robert then deposes that his relationship with Patricia throughout his life was a “normal” relationship, but adding (in what might be thought to be a gratuitous insult) that Ian Sanderson told him that his mother was “simple” and “silly” ([97]). (Although there is perhaps some support for this view of Patricia, in that Tracy Wilcox said that Patricia could not even boil a cup of tea (14/8/24; T 202.26), it is belied by the fact that, in more than one of his wills, Ian Sanderson saw fit to make Patricia his executor; and granted her his Power of Attorney.) Robert deposes that his relationship with Ian Sanderson was very good; that in his eyes they were “mates”, and that Ian Sanderson was like a father figure to him and would every now and then say that he was like the son he never had ([98]).

30. [335]

    Robert then swore an affidavit on 21 August 2023, again describing himself as a tree lopper, in response to the affidavits of Mr Duffy and Mr Chapple filed in the Equity Proceeding, in which he deposes to attending a conference with his brother Ben on about 15 July 2019 in the offices of “our previous solicitor”, Mr Oliveri. (What transpired at this conference appears to be the subject of the enquiry sought to be progressed by the subpoena which I ultimately gave leave to be issued to Mr Oliveri although the documents produced on subpoena and admitted into evidence – Exh K – do not record Robert’s attendance at any such conference.)

31. [336]

    Robert deposes that on 11 March 2022 he received an email from Mr Duffy advising that his grandfather and his grandfather’s accountant (Mr Stephenson) had wound up “the Trust” many years before Ian Sanderson died; and that Mr Stephenson had died many years before Mr Sanderson died ([7]) (to which Robert refers as the “Stevenson claim”). (I interpose here to note that the evidence shows that Mr Stephenson’s date of death was 9 May 2018.) Robert deposes that he was not aware of “the Stevenson claim” at the time of the 2010 Proceeding; and that he would not have executed the Deed of Settlement and Release had he been aware at that time of the matters and documents to which he there deposed (see at [9]).

32. [337]

    Robert’s 4 September 2023 affidavit relates to his claim for provision out of Trevor’s estate. In this affidavit, Robert describes himself as a disability pensioner (not a tree lopper).

33. [338]

    Robert makes the submission (at [6] of his affidavit) that he is an eligible person to make the claim on the basis that he was a step-child of the deceased, a member at a time of Trevor’s household, and a person who was at a time dependent on Trevor.

34. [339]

    In that affidavit Robert deposes to the times that he lived and/or worked on the “Family Estate” (defined as including some eight properties including Allawa, Barwon Vale, Gidgerygah and Wangrawally) and that he lived and worked interchangeably between where his mother and grandfather lived. Robert asserts that he depended on Patricia and Trevor when he visited the “Family Farm” (which he says he did a number of times each year from 1993 to 2006 for maintenance work and to help with the sheep shearing season one month a year) to provide room and board including food to enable him to continue his farming career (see at [27]). Robert goes on to depose as to the times that he returned to the “Family Estate” (see below).

35. [340]

    As adverted to above, Robert deposes at [37] that his relationship with Trevor was irrevocably broken on his taking the step of commencing legal proceedings in 2010 and that it never resolved. In cross-examination, inconsistently with this, Robert insisted that the two were civil to each other (see 13/8/24; T 139.31).

36. [341]

    As to his financial resources, Robert deposes to his assets, namely three vehicles, second hand firearms and clothing and personal “affects” of nominal value (at [42]) (the total value of which he estimates at $17,250); and that he is owed the following loans and debts “that are outstanding and may not be recoverable”: an undocumented unsecured loan to Ben (an undischarged bankrupt) for $220,000, an undocumented unsecured loan to “Stewart [sic] Wilcox” for $40,000; an undocumented unsecured loan to Alicia Wood for $80,000 and a documented debt owed by a Craig Fogarty in the sum of $120,000 ([43]). Robert has deposed that he has no superannuation; has no other assets other than property left at the Family Estate that he deposes has not been returned to him; no debts or liabilities; and holds no assets with another person ([44]-[47]). However, Robert does record that in the Equity Proceeding he contends that the Family Estate is held in trust for him and Ben ([56]).

37. [342]

    Robert deposes that his gross and net monthly income is $1,731.40 from a Commonwealth disability pension; that he has not worked since about 2018; that he obtained the disability pension within the past three months of this affidavit and previously had the Newstart pension for the previous 12 months. Robert’s monthly expenses were estimated at $1,200 for rent; $400 for food, $45 for mobile phone and $200 for transport.

38. [343]

    As to his “wishes”, Robert deposes that he would like to be in a financial position to travel within Australia and overseas; that he will likely need to replace his vehicles that he owns; and that he would like both to live in Sydney with the friends he has formed over the past 20-30 years and to live in the country where he grew up and to engage in activities such as both shooting and other recreational activities.

39. [344]

    Aged 55 at the date of this affidavit, Robert deposes that he has attempted to have children through IVF with a previous partner (as recently as 12 months ago) and would like to have children and support them through high school at good schools. Robert’s aspiration would be to manage a family farm that is large enough to pay his living expenses “ideally the Family Estate, using all the training and experience I obtained in my life until I was mentally unstable”.

40. [345]

    As to his disabilities, Robert deposes that he has a right shoulder injury that requires reconstruction and a left knee injury that requires an operation. He attaches medical reports about those conditions. He does not provide further information as to his disclosed mental instability.

41. [346]

    Robert deposes at [63] to the receipt of $1.1m in provision from his mother’s estate in December 2015 and that he has lent a significant sum of money and spent about $300,000 on various legal expenses related to proceedings before the provision was made and the current proceedings. Robert says that he also used part of the money to purchase the vehicles he owns. Robert says that he no longer has any of the money “as I have also used the remainder for living expenses over the past 8 years, including the past five when I have not had paid employment”.

42. [347]

    Robert’s most recent affidavit was sworn on 17 November 2023 (reverting to a description of his occupation as tree lopper even though in cross-examination it does not appear that he still carries on work of this kind) and was in response to the two affidavits of Monique (as well as her affidavit as executor, in relation to the valuation of the properties) and the various affidavits read in Monique’s case, as well as the affidavit of Trevor. At [63], Robert deposes (with some emphasis) that “NO, I spoke to my mother 2/3 times week trying to negotiate with her try to hand the land over to my brother and I” and at [64] he says that he was happily talking to his mother at the time of the telephone conversation referred to by Trevor at [21] (see below) which led to the making by Robert of an apprehended violence order application against Trevor.

43. [348]

    In essence, Robert in this affidavit expressly ‘rejects’ many of the statements made in those affidavits and makes submissions as to the statements in Monique’s affidavit that he contends support his contentions.

44. [349]

    In cross-examination, Robert accepted that his claim in the 2010 Proceeding was that throughout his grandfather’s life his grandfather promised that when he died the properties would be left to Robert and Ben (see at 12/8/24; T 41.25 by reference to [7] of the 2010 Proceeding which he verified on oath) and that he did not raise an allegation that the Properties were held on trust for him before his grandfather died (12/8/24; T 42.25-28). Robert did not explicitly accept there was any inconsistency in this (see for example at 12/8/24; T 61.45). The highest he would go was to say “if you say so” (12/8/24; T 62.48). As to his July 2011 affidavit, at first Robert said (12/8/24; T 43.14) he had not seen it “for years and years”, then that he had seen it only once since 2011; and, as noted earlier, he denied preparing his 2021 Affidavit by reference to the earlier affidavit (notwithstanding the identical conversations set out in the two affidavits) (see 12/8/24; T 58-59).

45. [350]

    Robert denied that he was “kicked off the property” by his mother in 1993 (12/8/24; T 46.49) although he agreed that she told him to leave but then said “well she did, but it was ignored” (12/8/24; T 47.2).

46. [351]

    In cross-examination, Robert was questioned about various aspects of his evidence. Relevantly, in terms of the finding of dishonesty that Monique here seeks, he was cross-examined as to his whereabouts in 2002, his dealings with Mr Davie, the explanation for not including in his 2011 affidavit conversations included in his 2021 Affidavit and the Facebook posts.

47. [352]

    Robert’s evidence on those topics included the following.

48. [353]

    Robert’s evidence at [47] of his 2021 Affidavit was that, in December 2001, he returned from the Northern Territory and after his return he lived with Ian Sanderson at ”Allawah” for well over a year, during which time, Ian Sanderson did not leave the Properties for a period of time that would allow him to travel to Tamworth or Sydney.

49. [354]

    In cross-examination (12/8/24; T 72.4) Robert accepted that, in giving this evidence, he was “pretty much” seeking to give the impression that the witnesses of the 2002 Will (Mr and Mrs Davie) could not possibly have witnessed it. Mr and Mrs Davie resided in Tamworth and Mr Duffy, the solicitor who prepared the 2002 Will, was located in Sydney.

50. [355]

    Robert did not appear to accept that the statement that he lived at Allawa for well over a year conveyed that he was there for the whole year, saying that he “would have come and gone” (12/8/24; T 70.46), or that he “came and went”, but that he did not leave the properties for an “extended time” (12/8/24; T 71.4).

51. [356]

    In his 2011 Affidavit, Robert deposed (at [12]) that, from 2001 to 2011, he was self-employed in Eastern Suburbs Tree Services and that he had done some work on the farms in 2001 but had returned to Sydney at the end of 2001 to “do work at Millenium Stadium, removing seats for Lindor Tower Cranes” ([37]). In cross-examination, taken to this paragraph of his 2011 Affidavit, Robert said, initially, that he had deposed (and had confirmed it was accurate) that from 2001 he was self-employed with Eastern Suburbs Tree Services (12/8/24; T 73.9-15) but then when it was suggested to him that he was not living with his grandfather from December 2001, Robert said “[a]ctually, I hadn’t even started at Eastern Suburbs Tree Service [from 2001] but I was cutting down trees, yes” (T 12/8/24; T 73.31-35). Robert accepted that he was working in the Eastern Suburbs during this time (12/8/24; T 73.15).

52. [357]

    When cross-examined before Pembroke J in 2012, Robert had said that after 1992 he was “never on [his] grandfather’s properties on a full time basis after then” (8/10/12; T 35.1-14); and there was the following exchange (8/10/12; T 6.10-14):

53. [358]

    Robert also gave evidence in 2012 that from 2001 he had been self-employed and had not worked outside of the Sydney metropolitan area, other than in Gunnedah and Hunter Valley.

54. [359]

    In Robert’s affidavit of 4 September 2023, he deposed (at [32]) that in 2001 he “moved to Sydney to work but continued to regularly live with the deceased [Trevor] and work on the Family Estate until late 2006”. In that regard, Robert said that he went to “cut some trees in Sydney and stuff like that” (12/8/24; T 75.8); that he went opal mining with his father in Queensland (12/8/24; T 75.12); and that he went to and from Cubbie Station in Queensland (12/8/24; T 75.11); but he did not concede that [47] of his 2021 Affidavit was inaccurate (12/8/24; T 75.34-43).

55. [360]

    Cross-examined in the present proceedings as to his evidence before Pembroke J that he had not been on the property full time since 1992, Robert’s response (at 12/8/24; T 75.1) was “well yeah was doing my trade”:

56. [361]

    Robert finally said that “well over a year” (as he deposed in his affidavit) maybe should be corrected to say “I came and went” (see 12/8/24; T 75.41).

57. [362]

    Ultimately Robert’s position seems to have been that his address was at Walgett but he was not there full time (365 days a year) from December 2001 to December 2002 (13/8/24; T 86). Moreover, in the 2010 Proceeding, as extracted above, Robert’s evidence was that his “main base” was with his grandfather “at all times” (not his mother and Trevor), whereas in the present proceedings (no doubt to support his claim in the Family Provision Proceeding that he was dependent on and a member of Trevor’s household), Robert focusses on time spent at Wangrawally.

58. [363]

    At [49](b) of the 2021 Affidavit, Robert deposes to a conversation with Mr Davie in or around July 2017 in which Robert claims to have spoken to Mr Davie for the first time about the 2002 Will and to have shown the 2002 Will to Mr Davie. Robert deposes that Mr Davie said “there is no way my wife and I signed that” and that Mr Davie said he would remember if he had witnessed the 2002 Will. In cross-examination in the present proceedings, Robert said that this was “exactly what [Mr Davie had] said” (13/8/24; T 92.38).

59. [364]

    This is inconsistent with the email exchange between Robert and Mr Davie (sent after Robert’s first conversation with Mr Davie about the 2002 Will), in which Robert sent Mr Davie an email (on 17 July 2017 at 1.32pm), referring to their earlier conversation on 10 July about the 2002 Will. In that email, Robert indicated that he was in the process of getting a copy of the 2002 Will, and requested that Mr Davie send him a separate email, suggesting to Mr Davie what he should write:

60. [365]

    Robert initially accepted in cross-examination that the 17 July 2017 email (insofar as it speaks about getting a copy of the will after an earlier conversation with Mr Davie about the will) suggested that, at the time of Robert’s first conversation with Mr Davie about the 2002 Will, Robert did not have a copy with him of the 2002 Will (and so could not have shown the will to Mr Davie at that time) (13/8/24; T 20.19).

61. [366]

    Mr Davie responded to Robert’s 17 July 2017 email the same day (at 4.16pm), stating:

62. [367]

    Pausing here, this email makes clear that Mr Davie cannot have been shown the 2002 Will at the earlier (10 July) meeting, since he is here stating that the “sighting of the Wills” by him would no doubt help in clarifying the matter. Robert’s earlier 1.32pm email makes that abundantly clear.

63. [368]

    Monique emphasises the difference between Mr Davie’s statements in his 17 July 2017 4.16pm email (to the effect that he had no positive recollection of witnessing the Wills, that he had witnessed many signatures in his time yet had no positive recollection of the name of any person whose signature he had witnessed and that sighting the Wills would help to clarify the matter) and the words attributed by Robert to Mr Davie in their earlier conversation (to the effect that there was “no way” he or his wife signed the Will).

64. [369]

    Pausing here, I note that the one thing that Mr Davie expresses certainty about in his email is that he had never been in a solicitor’s office in Walgett. The force of that observation, however, depends on the assumption, seemingly made by Mr Davie, that wills are usually witnessed in a solicitor’s office, which in my experience in relation to wills that have come before me in Court is not necessarily the case.

65. [370]

    Significantly, after that 17 July 2017 exchange, it is clear that Robert placed no little pressure on Mr Davie to provide a statutory declaration stating that the signature on the 2002 Will was not his signature (as I explain below).

66. [371]

    On 16 May 2018 (almost a year since Mr Davie’s 17 July 2017 response), Mr Davie sent an email to Robert (in content clearly responding to a request by Robert to visit Mr Davie in Tamworth, a copy of which was not in evidence), the email subject line reading “Re: Remembering our grandfather mentioning us taking over the property …”, saying:

67. [372]

    Pausing here, what Mr Davie is here stating is an absolute certainty that the writing and signatures on the will were those of himself and his wife (though they could not remember witnessing the Will). This is consistent with Mr Davie’s response in the email on 17 July 2017 that he did not recall witnessing the Wills (but his implicit acceptance of the possibility that he had done so – which he thought would be clarified by sighting the Wills). It is squarely inconsistent with Robert’s evidence in cross-examination in the present proceedings that Mr Davie had told him that he was sure he did not sign the 2002 Will (and makes a mockery of Robert’s repeated suggestion that the respondents could call Mr Davie to which I refer in due course) (see, for example, 13/8/24; T 97.40; T 103.29-33). Significantly, the copy of this email which appeared as the exhibit to Robert’s 2021 Affidavit did not include a complete copy of the email chain of which it formed part.

68. [373]

    During the course of cross-examination, Robert was asked whether he had other email correspondence with Mr Davie to which Robert replied that he had “no idea in the world” (13/8/24; T 100.32). Robert also claimed to be unaware that a notice to produce had been issued to him for any such correspondence (13/8/24; T 100.44). A call was made on that notice to produce during the course of Robert’s cross-examination and, after the cross-examination had concluded, some correspondence was produced, including an email sent by Robert on 17 May 2018, responding to Mr Davie’s email of 16 May 2018 and Mr Davie’s response thereto (Ex C).

69. [374]

    In Robert’s 17 May 2018 email, sent at 4.08pm, Robert thanked Mr Davie for his co-operation to date and for his email dated 16 May 2018. Robert acknowledged Mrs Davie’s medical condition, apologised for any inconvenience he had caused her regarding his grandfather’s estate and indicated that she “need not be involved any further. Robert then went on to say:

70. [375]

    The draft statutory declaration attached included the following statements:

71. [376]

    Monique (in my view correctly) characterises this as a veiled threat. Robert (implausibly) denied that this was a veiled threat or an attempt to pressure Mr Davie into signing a statutory declaration.

72. [377]

    Mr Davie’s response to this, by email on 18 May 2018 at 9.39am, was (emphatically, having regard to the capitalisation and terms used) to state that:

73. [378]

    It was put to Robert in cross-examination that, from this point, he had no doubt that Mr Davie was not going to sign the statutory declaration. Robert’s initial (seemingly off the top of his head) response was that he may not have even read the email. Monique says was a lie, referring to an email sent on 31 July 2018 by Robert to Mr Davie – Ex D (which email was also only produced during the course of the hearing before me) (15/8/24; T 281-T 284). If not a lie, then it certainly was a statement shown to be incorrect in light of the fact that Robert responded to the very email that he said he may not even have read.

74. [379]

    Robert chose not to accede to Mr Davie’s evident (and emphatically expressed) wish that Robert cease communications with him. In his 31 July 2018 email (Ex D), Robert expressly referred to the email Mr Davie had sent to him on 18 May 2018 and said:

75. [380]

    Robert then set out an in-person conversation that he said they had had when he met with Mr and Mrs Davie at their residence in Tamworth in July and August 2017, including attributing to himself words to the effect:

76. [381]

    Robert goes on to attribute to Mr Davie the statement that “No, no way, we didn’t sign your grandfather’s will…” and there records that Mr Davie and his wife shook their heads “emphatically denying signing the will”, before the statement said to have been made by him that “[i]f you didn’t sign it then it was my mother, she was a master artist, she could forge my grandfather’s signature left and right handed. She’s being doing it since she was 12 years old, it was one of her party tricks to forge other people’s signatures”.

77. [382]

    In the email, Robert then states that Mr Davie’s own statements, and the circumstances Robert had described, clearly indicate that Mr Davie and his wife did not witness the will, did not witness his grandfather signing the will and did not know where the will was signed. Robert states that the most obvious explanation as to how the Davies’ writing and signatures made their way onto the will was that his mother forged their writing and signatures from the letters and Christmas cards the Davies had exchanged with her over the years. Robert requested Mr Davie to reconsider his position as he and his brother lost a $30m dollar estate that had been the family for over 150 years, asserting that he was now homeless. Robert stated “[y]ou know you did not witness my grandfather’s will” and requested that Mr Davie execute the statutory declaration that had been emailed to him on 17 May 2018, which was re-attached to the email.

78. [383]

    The email concluded:

79. [384]

    In cross-examination, Robert claimed that he simply made a politely request for Mr Davie to sign the statutory declaration; and then said that the reference to getting the police involved was because Mr Davie was “frightened of coming to court”. This explanation is impossible to accept having regard to the content of Mr Davie’s communications. There was the following exchange in cross-examination (15/8/24; T 293.23-50):

80. [385]

    Neither this correspondence nor Robert’s attempt to explain it does him credit.

81. [386]

    Relevantly, Robert’s evidence at some parts of his cross-examination was that he had remembered the alleged trust conversations at the time of his 2011 Affidavit (including the incorrect assertion that he had included some or all of them in the 2011 Affidavit and the assertion that his solicitor had advised him not to include them) and saying that he had forgotten them in 2011 and later remembered them (by 2021). So, for example, Robert said (12/8/24; T 67.31-T 68.6):

82. [387]

    Robert accepted that this was his “consistent explanation” for why the alleged trust conversations were included in his 2021 Affidavit but not his 2011 Affidavit (13/8/24; T 108.42).

83. [388]

    The explanation that Robert had forgotten the trust conversations in 2011 but remembered them by 2021 is inconsistent with the explanation he gave in his 2021 Affidavit (at [61]), set out earlier where Robert deposed that he had accepted his solicitor’s advice not to mention the trusts.

84. [389]

    Confronted with this, Robert then gave evidence to the effect that he raised the alleged trust conversations with his lawyers and “they told us, yeah, not to, not to put them in” the 2011 affidavit (13/8/24; T 109.33). When shown a first draft of his witness statement from November 2010 which did not include any reference to the alleged trust conversations, Robert’s evidence was that it was “probably because we were told to take it out” (13/8/24; T 110.35), then said “I don’t know”.

85. [390]

    Robert then said that the “first bloke I asked about a trust” was Mr Miller (the solicitor who was retained by Robert in 2015 to act in respect of Patricia’s estate) (13/8/24; T 110.1). Monique points out that, if that were right, then it would mean that [61] of the 2021 Affidavit must be wrong (i.e., that no advice about the trust was received from Mr Macaulay in 2011), submitting that it is inconsistent with Robert’s subsequent insistence that he remembered talking about the alleged conversations in 2011 (13/8/24; T 119.42-T 120.30).

86. [391]

    Robert then (after complaining that Monique’s counsel was trying to confuse him – see (13/8/24; T 87.33)) said that both he and his father (Robert Snr) had raised the trust conversations with Mr Macauley (12/8/24; T 122.27-34); then said that only his father had raised the trust issue “in front of me and my brother, to, to Mr Macauley and Mr Macauley said we won’t , we won’t go there” (13/8/24; T 120.9-13); but then again said that he raised the alleged trust conversations with Mr Macauley but was told not to include them in his 2011 affidavit (13/8/24; T 122.43. T 123.39). In explaining why he did not raise the alleged trust conversations in cross-examination in 2012 before Pembroke J, Robert said that he did recall some of the alleged trust conversations in 2011, that he raised them with Mr Macauley, and that he was advised not to mention them (13/8/24; T 125.22).

87. [392]

    As to the alleged “promise conversations” with Ian Sanderson which were included in both the 2011 and 2021 Affidavits. Robert did not accept that in preparing his 2021 Affidavit he simply adopted some of the conversations from his 2011 Affidavit, and said that he doubted he even looked at the 2011 Affidavit in preparing the 2021 Affidavit (12/8/24; T 59.1).

88. [393]

    In Facebook posts concerning Patricia and Trevor after they had died (Ex H), Robert made various allegations about them. By way of example, Robert posted that:

89. [394]

    Robert not only made accusations of fraud against Trevor and Patricia but also referred in the posts to “all forgeries from aCrooked [sic] solicitor” (naming Mr Duffy) and went on to say “FYI. All the Lawyer are up on fraud and the Judge has been dismissed from the supreme court … and in ICAC”. Robert went on to make various derisory comments about his mother and to repeat his allegations of forgery, stealing her children’s land and possessions and withholding the knowledge of the trust (as well as accusations as to third persons stealing water from the land).

90. [395]

    Stuart is one of two brothers of Robert Wilcox Snr (Robert and Ben’s father). In his affidavit, Stuart deposes to a dispute in about 1977 arising between the three brothers in relation to an alleged breach by Robert Snr of an agreement involving a stock partnership between them. Stuart deposes at [19] to a conversation in about 1981 for a meeting regarding the said dispute, in which Stuart says that Patricia said to him words to the effect that “dad has left the properties in trust for the two boys”.

91. [396]

    Objection was taken to this evidence on the basis that the conversation was subject to without prejudice privilege as it was a conversation in a bona fide attempt to compromise a dispute. I provisionally allowed the evidence. I did so because I was not satisfied at that time that the privilege applied. I therefore now address this issue as follows.

92. [397]

    The relevant question in determining whether “without prejudice privilege” attaches to a communication is whether the communication answers the description of being in connection with an attempt to negotiate the settlement of a dispute (Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352, at [78] (per Beech-Jones J)). This question is comprised of two elements: first, whether the communication is “an attempt to negotiate a settlement of the dispute”; second, whether the communication is made, or document prepared, “in connection” with such an attempt (see Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 (Galafassi), at [115] (per Gleeson JA, with whom Bathurst CJ and I agreed)).

93. [398]

    The first component of that question is a matter of nexus. The observations of Young J (as his Honour then was) in GPI Leisure Corporation Ltd (in liq) v Yuill (1997) 42 NSWLR 225 (Yuill) are particularly relevant (and have been adopted in subsequent cases (see Galafassi at [117]-[119])). In that case, a letter included statements that a party was willing to put in place a working mechanism for operation of any relevant claims, and contained further matters which that party was willing to consider for approval. It was held that this communication was not sufficiently connected to “an attempt to negotiate a settlement” of the dispute so as to be protected by s 131(1)(a) of the Evidence Act 1995 (NSW). At 226-227, his Honour observed:

94. [399]

    As was observed in Galafassi, the phrase “attempt to negotiate a settlement” does not necessarily require an element of attempt to compromise in which a mutually acceptable ground is found. Rather, “negotiate” simply means to arrange for or bring about a settlement (Galafassi, at [120] referring to Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276, at [14] (Bromberg J); Coshott v Burke [2013] FCA 513, at [14] (Farrell J)).

95. [400]

    As to the second component, the degree of connection required is direct (Yuill, at 226). As was observed by Dixon CJ, Webb, Kitto and Taylor JJ in Field v Commissioner for Railways (NSW) (1957) 99 CLR 285 (at 292-293); [1957] HCA 92, the scope of the privilege “… depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto”, but that there needed to be a “proper connexion with any purpose connected with the settlement of the action”. A tenuous connection is insufficient (Seven Network Ltd v News Ltd [2006] FCA 343, at [50] (Graham J)).

96. [401]

    In the present case, the dispute was between the three Wilcox brothers, the allegation being that Robert Snr had wrongly acted in acquiring a property that the partnership was interested in acquiring or had agreed to acquire. The ultimate proceedings in relation to this dispute were commenced by the third brother, David. The meeting in question was one where Patricia and/or Robert Snr were seeking to enlist Stuart’s support for Robert Snr’s position. That seems to me to be not sufficiently connected to an attempt to negotiate a settlement or compromise of the dispute with David. It was apparently seeking to obtain support for Robert Snr’s position in order to dissuade David from taking the matter further. It seems to me to be akin to the position considered in Yuill.

97. [402]

    Accordingly, the “provisional” qualification on the admission of that evidence is removed. I note that, against the possibility of that conclusion being the ultimate conclusion on this issue, counsel for Monique cross-examined both Stuart and Tracy on their accounts of that conversation.

98. [403]

    Stuart also deposes to a conversation in 1984 with Ian Sanderson ([23]) in which he says Ian Sanderson said that it was beneficial that Robert was returning to help him with the properties “so he will be self-sufficient to run the properties”. Stuart deposes to asking Ian Sanderson how Patricia was and that his response was to the effect “[y]ou know Patty” ([23]). (It is difficult to attach any weight to such a vague statement as “[y]ou know Patty”.)

99. [404]

    In cross-examination, Stuart said that he had a “pretty good” memory of the conversations from 1976 because the corresponding dates on some of those things were important to him (it is not clear to what he was there referring) (14/8/24; T 207.26).

100. [405]

     Stuart considered that he had a good relationship with Robert “as a nephew” and said that he would “like to see justice for him”, by which (interestingly) he meant that “I would suggest that it should come to a reasonable agreement” (14/8/24; T 207).

101. [406]

     Stuart said that Robert had sent him the “current trust papers” that had come to light and agreed that he had spoken to Robert about the claims in the proceedings and about the trust deed “mainly [as to] the point… why it was produced at this late date” (14/8/24; T 212.14-16); and that Robert told him he thought it would help his trust claim.

102. [407]

     Stuart said that from about the age of nine “we’ve known the properties are in a trust” (14/8/24; T 212.34) (this was answered in the context of an immediately-preceding reference to the “family properties” about which Robert said to Stuart he was entitled to); and later said that he was the person who had told Robert there was a trust (14/8/24; T 216.43) (something that seems inconsistent with Robert’s account).

103. [408]

     As to the debt that Robert claims in his affidavit he is owed from Stuart, in the witness box Stuart denied that any more than about $3,000 was owing; and suggested that there was an informal arrangement whereby, if Robert asked him for money, he would transfer some to his bank account.

104. [409]

     Tracy, who is married to Stuart, gave similar evidence to that of Stuart as to the dispute in relation to the partnership between the three Wilcox brothers (perhaps not surprisingly since she made clear that this was her understanding on the basis of what Stuart had told her) (see [8]).

105. [410]

     Tracy deposed to a meeting in late 1981 with Patricia following “numerous calls” that she said were made by Patricia to her wanting Stuart and Tracy to side with Robert Snr and her in the dispute ([9]ff). The evidence as to the 1981 meeting (at [9]-[14]) was again only provisionally allowed following the objection that it breached without prejudice privilege (which I have dealt with above). That evidence included statements attributed to Patricia to the effect that her father was not leaving anything to her as it was in a family trust for Robert and Ben and that her father had left everything to the boys.

106. [411]

     Tracy also deposed (at [19]) to a statement made by Ian Sanderson when she and Stuart met Ian Sanderson outside David Jones in Sydney in June 2024 to the effect that Robert needed to get qualifications “to be self-sufficient to run the largest estate in the Western District” and that Ian Sanderson had referred to his daughter as “poor silly Patty” and said that “[s]he has no idea” in that context.

107. [412]

     In cross-examination, Tracy said (with evident feeling) that she knew Robert’s beliefs about his grandfather’s estate because “[f]or all my married life I’ve put up with it” (14/8/24; T 200.31-36). Tracy said that she remembered the conversation “pretty well” because she was only just married at the time and it was “quite confronting to be presented with all these family problems” (14/8/24; T 201.14-16). (That evidence certainly had the ring of truth to it.)

108. [413]

     Tracy agreed that the principal focus of the meeting was about resolving the dispute between the brothers but indicated that this was because Robert was “trying to get [Stuart] to back [Robert Snr] against his brother of something that he did wrong” (14/8/24; T 201.25). Tracy did not accept that she might have been mistaken in relation to the 1981 conversation (14/8/24; T 202.14-15).

109. [414]

     Tracy refused to accept that she had misremembered her statement at [11] of her affidavit sworn 13 December 2021 that Patricia had more than once complained that her father had left everything to the boys and had left her with nothing (14/8/24; T 202). Tracy also said that Ian Sanderson had spoken a number of times of Patricia not being capable and Tracy said that Patricia “could barely make a cup of tea” (an observation seemingly inconsistent with Robert’s view that Patricia was a master forger but in any event Patricia’s capacity is not the issue here).

110. [415]

     Tracy denied that Robert had lent her or her husband money (14/8/24; T 200).

111. [416]

     Douglas, whose grandmother was the cousin of Ian Sanderson and who is the Chief Executive Officer and managing director of a superannuation trustee company (Trustee Tailored Super), which he founded (and who described himself in his oral evidence as a manager of a bank, director of a company and grazier) gives evidence in his affidavit as to a conversation in 1986 or 1987 (when he was aged 17) between Ian Sanderson and his wife, Linda, which occurred when Douglas and his father were present at Allawa having tea with them on the verandah. Apart from deposing to some derogatory comments made by Ian Sanderson about his daughter Patricia and by Linda Sanderson about their son-in-law Robert Snr, Douglas deposes to a statement by Ian Sanderson on that occasion to the effect that “[w]e made the decision some time ago to leave the properties in trust for Robert and Ben… I’ve been training the boys to take over when I am gone. Everything will be theirs” ([8]).

112. [417]

     Douglas deposed that Ian Sanderson was holding a document at the time to which Douglas was not privy and that Ian Sanderson and Douglas’ father walked down to the end of the verandah and spoke to each other for about an hour. Douglas deposed that he could hear that they were talking about various clauses in the document including regarding capital gains tax implications and trustees.

113. [418]

     In cross-examination, Douglas accepted as possible that he had discussed with Robert in occasional conversations over the years what Robert’s understanding was (as to the properties) (14/8/24; T 195.34-38) and said that it was well known in the community what the expectation was. Douglas, when shown Ian Sanderson’s 1987 Will, agreed that Ian Sanderson was there creating a trust the income from which was to go to his wife Linda for her life and then the whole trust was for his daughter, Patricia, but was quick to add “not assets that might be in another trust but his assets yes” (14/8/24; T 198.40).

114. [419]

     Douglas was adamant that his understanding was that the conversation at the time was about a trust document not a testamentary trust, but he was unable to say precisely what words were used in the conversation (14/8/24; T 196.2-3; T 199;.15-16) and it is impossible to discern what led him to that conclusion. Douglas did not accept that he might have been mistaken that the trust was solely for the benefit of Robert and Ben.

115. [420]

     As already noted, after the close of the evidence in Robert’s case I permitted the evidence to be reopened in order to admit some documents tendered from the material produced by Mr Oliveri in answer to the subpoena issued on 13 August 2024, which called for documents “recording, evidencing, setting out or describing or otherwise concerning advice provided by Paul Duffy Solicitor to [Ben] concerning the existence or otherwise of a trust” involving any of a list of persons or properties.

116. [421]

     The breadth of such a category of documents is remarkable (let alone the potential difficulty of determining whether a document fell within the description as one “involving” any of the listed persons or properties) but no objection was made by the subpoena recipient on the basis of oppression or difficulty in determining what was required to be produced (and indeed it seems clear that Mr Oliveri had been consulted in advance as to what was being sought)).

117. [422]

     Of the material produced, Robert tendered a number of handwritten file notes (one dated 14 May 2019, one dated 20 December 2019 and an undated file note apparently relating to the finding of the Duffy Letter) as well as specific paragraphs from what appear to be affidavits prepared for Ben in relation to the separate 2019 proceedings Ben had brought. The high point of the dated file notes and the particular paragraphs of the draft affidavit appears to be the reference in those documents to a concern expressed by Ben that “I don’t trust my mother’s boyfriend [sic] intentions and that I thought he was trying to ‘screw her over’”” and the response recorded as having been given by Mr Duffy.

118. [423]

     The 14 May conference notes (headed Conference with Ben – Meeting with Duffy – Subpoena) recount Ben’s account of a conference with Mr Duffy before the 2010 Proceeding started, in which Mr Duffy is said to have said “don’t worry the boyfriend can’t do that because the properties are in a trust and they’re not like a loaf of bread that can be divided into slices. No need to see a succession planner” and then that “you cannot tell anyone about what we just talked about especially not your brother”. The exhortation to silence is not only unexplained but inherently implausible. It is difficult to see why Mr Duffy would have suggested that Ben not tell his brother the advice there attributed to Mr Duffy.

119. [424]

     The draft affidavit paragraphs phrase that conversation along similar lines. The undated file note referring to the finding of letters in a drawer on the farm and notes “Duffy did not tell me or the Court about that letter only that all the properties were in Trust that were owned by my grandfather … Duffy said that I and brother would receive when my mother died. But not to mention this to any one”.

Evidence in Mr Chapple’s defence

1. [425]

   In Mr Chapple’s defence to Robert’s claim, two affidavits were read: an affidavit sworn by him on 3 May 2023 and an affidavit sworn on 3 May 2023 by Paul Duffy (the author of the Duffy Letter).

2. [426]

   Mr Chapple, who is a solicitor, was not required for cross-examination (until after the close of evidence when Robert applied to reopen his case and for leave to cross-examine Mr Chapple, both of which applications were refused, as explained earlier).

3. [427]

   In his affidavit, Mr Chapple deposed to the Deed of Settlement and Release entered into on 18 December 2015 with Robert in settlement of the family provision proceeding brought by Robert in respect of Patricia’s estate ([2]-[4]) (part Ex B) and to the judicial advice provided by Brereton J to the effect that Mr Chapple was justified in consenting to orders in terms of the Deed of Settlement and Release ([6]). Mr Chapple has also deposed to his lack of knowledge of any trust established by Ian Sanderson by September 1980 (this being the trust that he understood Robert was alleging) and that he did not at any time have any conversations with Patricia regarding a trust ([8]). Mr Chapple further deposed that he did not, to his recollection, speak to Ian Sanderson at any time up to his death in 2010 ([9]).

4. [428]

   Mr Duffy, who is also a solicitor, deposed that he had previously acted for Patricia in respect of conveyancing transactions and had also acted for Ian Sanderson.

5. [429]

   As to the Duffy Letter, he deposed that his conversation with Ian Stevenson [sic], Ian Sanderson’s accountant, referred to in the first paragraph of the letter was the basis of his knowledge of the information that followed ([4]). Mr Duffy deposed that he did not have a precise recollection but that Mr Stevenson had explained to him the matters set out in the letter including the reference to the interest in Sanderson Estates being held through trusts. Mr Duffy deposed that he was not involved in the establishment of any trust for Ian Sanderson and had not prior to 1980, during 1980 or since, seen a trust document relating to the shares in Sanderson Estates.

6. [430]

   Mr Duffy also deposed that when Ian Sanderson died in 2010, he rang the office of his accountant to discuss preparing a list of assets and recalled having a conversation with an employee of Mr Stevenson to the effect that he enquired whether there were any trusts and the employee said “Mr Stephenson wound up all the old trusts years ago after Mr Sanderson’s wife died. There are no trusts in existence now”. Objection was taken to this evidence by Monique on the basis that it was second hand hearsay and its admission was limited to the fact of the communication not its truth. Mr Duffy further deposed that aside from the 25 September 1980 letter he did not recall speaking to Patricia about such a trust at any point ([6]).

7. [431]

   Also relied upon in Mr Chapple’s case was an affidavit sworn by Mr Duffy on 20 September 2012 in the 2010 Proceeding. There, Mr Duffy deposed that he had been practising as a solicitor since 1972; that for many years he acted for Ian Sanderson and that following his death he was retained by Patricia to obtain a grant of probate of her late father’s 2002 Will ([1]). Mr Duffy deposed that he was the draftsman of Ian Sanderson’s will dated 21 August 2002 which was admitted to probate on 17 October 2011 ([2]). Mr Duffy deposed that throughout the entire time that he acted for Ian Sanderson he did not ever receive instructions from him, nor did Ian Sanderson ever discuss with him, overlooking his daughter in favour of his two grandsons as prime beneficiaries under the 2002 Will; rather, his instructions were always that his two grandsons were to be the substituted beneficiaries in the event that their mother predeceased him or failed to survive him by whatever period of time was required ([3]).

8. [432]

   Mr Duffy was cross-examined as to matters going to the existence of the alleged trust and his knowledge of the 1962 Trust Deed and other matters.

9. [433]

   Mr Duffy was cross-examined as to his role as a solicitor in relation to and familiarity with the Sanderson family affairs. Mr Duffy explained that this was after about 1982 when one of the other partners in the firm, Mr Bambach, died and Mr Duffy then assumed a larger role (14/8/24; T 223.27). Mr Duffy said that prior to Mr Bambach’s death (in the early 1980s – 14/8/24; T 226.47) he did not have any role in relation to Ian Sanderson’s property affairs (14/8/24; T 223.31).

10. [434]

    As to the Duffy Letter, Mr Duffy said that Patricia had contacted him (by telephone making enquiry – 14/8/24; T 226.30) but that he “really had no great knowledge of Mr Sanderson’s affairs, personally” and that the comments in the letter were a result of what Ian Stephenson told him (14/8/24; T 224.13). Mr Duffy’s recollection was that Mr Bambach was away at the time (in September 1980) and that he had mentioned to him that he had the phone call and had written the letter and that he would see Mr Sanderson when he was next in Sydney (14/8/24; T 225.19-23).

11. [435]

    Mr Duffy said that he did not go to the deeds register to see what deeds and documents were there to familiarise himself with the Sandersons’ property affairs (14/8/24; T 226.38); that he did not do so at the time he took over Mr Sanderson as a client and did not do so at any time (14/8/24; T 227.9); and that he did not look into the Sanderson family affairs (14/8/24; T 227).

12. [436]

    Mr Duffy accepted that the firm (Garland Seaborn & Abbott) did have a deeds register at the time and had a well-kept safe custody system (14/8/24; T 228.50) and that valuable documents would be held in perpetuity (14/8/24; T 229.9).

13. [437]

    Mr Duffy was aware of Patricia’s family law proceedings in the mid-1990s but said that Patricia did not contact him about it. He said that Mr Bambach may have mentioned it to him (14/8/24; T 229.46).

14. [438]

    After Mr Sanderson died, Patricia contacted him to make an application for probate of her late father’s will, in the course of which Mr Duffy said he made telephone enquiries of Mr Stephenson’s office (14/8/24; T 230) before he completed the probate application to ask if there were any trusts involved (14/8/24; T 235.20). Mr Duffy accepted that at that time he had a distinct recollection of the matters in the 1980 letter; and that he probably would have had a file note of the conversation (with Mr Stephenson’s office) but could not tell if that had been retained anywhere as it was so long ago (14/8/24; T 230). Mr Duffy appeared somewhat confused as to dates in answering a question as to Mr Sanderson’s probate file (saying that was in 1980 or 1981, when it is clear that the application for probate was in 2011) (see at 14/8/24; T 231). The confusion may have arisen because the Duffy Letter was in 1980 and the probate application 2011.

15. [439]

    At 14/8/24; T 232, Mr Duffy was again questioned as to his evidence in relation to his telephone call with an employee at Mr Stephenson’s office shortly before the probate application was completed and lodged. He said that he distinctly remembered the call. Mr Duffy said that he did not have the probate file at his firm; that it would have been in storage but that when he moved offices some years ago all files more than seven years old were destroyed (14/8/24; T 232.27).

16. [440]

    Cross-examined as to the Duffy Letter, Mr Duffy said that he was not aware in 1980 when he wrote the letter of any “other trusts”; and that as at 1980 he was not aware of any trusts, he was just repeating what he had been told by Mr Stephenson (14/8/24; T 234-T 235). Mr Duffy said that his only interaction with Mr Stephenson himself was in 1980.

17. [441]

    Mr Duffy was also cross-examined as to an email that he had sent to Robert on 11 March 2022 in which he wrote:

18. [442]

    Mr Duffy was shown a probate notice recording the date of death of Ian Thomas Stephenson as 9 May 2018 (i.e., after the date of Ian Sanderson’s death). Mr Duffy maintained (14/8/24; T 237) that he was told by the person he spoke to at Mr Stephenson’s office (i.e., prior to lodgement of the probate application for Mr Sanderson) that Mr Stephenson had died; and he believes that to be a correct statement in his email. However, Mr Duffy accepted that if the probate notice correctly referred to the Ian Stephenson who was Mr Sanderson’s accountant then what he said in the email was incorrect (but he said that the reason for the inaccuracy was what he was told by Mr Stephenson’s office).

19. [443]

    Pausing here, it is hard to believe that Mr Stephenson’s office would have advised that Ian Stephenson was dead some seven years before it appears that he in fact died (assuming the probate notice relates to the same Ian Stephenson and I would infer that it does, since the Sanderson Companies’ annual returns (to which I have referred earlier) disclose that Ian Stephenson’s full name was Ian Thomas Stephenson and that his address was in Greenwich, Sydney, consistent with the information in the probate notice). However, equally, there seems no reason for Mr Duffy to have intentionally given Robert incorrect information in 2022 as to when Mr Stephenson had died. The most likely explanation seems to be that Mr Duffy’s recollection of what he was told when he contacted Mr Stephenson’s office in 2011 was mistaken. While I accept that this may raise doubt as to whether the balance of the information conveyed to Robert (i.e., that the “trusts” had been wound up) was also inaccurate, the fact remains that the application for probate did not record any assets held by Ian Sanderson in trust. Thus, whatever Mr Duffy was told when he contacted Mr Stephenson’s office, it must have led him to believe that there were no “trusts involved” (using Mr Duffy’s words as to the purpose of the enquiry he said he made). In any event, I place no weight on Mr Duffy’s recollection that he was told that all the old trusts had been wound up (not least because there is only documentary evidence of one trust and because there is no evidence at all that any of the claimed properties or the shares in Sanderson Estates ever became subject to that trust in the first place, so whether it was would up or not takes the matter nowhere).

20. [444]

    There is no basis on the evidence before me for any finding that Mr Duffy dishonestly made the statement in his 11 March 2022 email (or that he acted dishonestly when completing the application for probate) and it is hard to see what motive he could have had for so doing. Robert’s accusation that he is a “crooked lawyer” has no foundation in the evidence (similarly, his accusations as to numerous other lawyers who have been involved in the matter bear the hallmarks of a conspiracy theorist).

21. [445]

    Returning to Mr Duffy’s cross-examination, he said (at 14/8/24; T 240.47-49) that he did not think to locate any trust deeds or documents to ensure that the trust(s) had been validly wound up (a question which assumes that he was informed that they had been informed that they had been wound up) or to make enquiries of “Garlands” (Garland Hawthorn Brahe as the firm would by then have been called) as to whether they held any trust deeds.

22. [446]

    Mr Duffy confirmed that after Ian Sanderson died, Patricia followed him as a client to his then sole practice but he could not remember if she brought anything across with her that would have been held at “Garlands” and he did not recall sending any authority to that firm to forward documents to him (14/8/24; T 241). Mr Duffy was adamant that there was nothing in his safe custody system in relation to the Sanderson family (14/8/24; T 241.27).

23. [447]

    Pausing here, the application made after close of the evidence by Mr Wilson for leave to subpoena the firm Garland Hawthorn Brahe was based on information to the effect that there was a deeds register record that disclosed that a document or documents held in safe custody at that firm had been removed by Mr Duffy. Even if that were the case, it would not assist Robert in circumstances where there is no reason to believe that Mr Duffy presently holds any Sanderson family documents (and he is adamant that he does not). Whether or not Mr Duffy had access to, or removed documents from, his former firm’s safe custody storage, would not permit an adverse finding based on Mr Duffy’s inability now to recall this. Indeed, Mr Duffy’s recollection was that Patricia had instructed him to forward any papers to Mr Chapple (as I understand it in relation to the 2010 Proceeding in which Mr Duffy says he was not involved and which Mr Chapple’s firm was handling) (14/8/24; T 241). I note that Mr Duffy seemed to be unsure who was the executor of Ian Sanderson’s estate, saying that he could not recall and that it may have been his daughter, which suggests that his memory is not reliable in relation to the matter (since the application for probate was completed by him on behalf of Patricia) (14/8/24; T 241.46).

24. [448]

    Mr Duffy says that the reason he did not disclose the existence of a trust in the Ffamily Provision Proceeding or other proceedings was that he relied on the advice of Mr Stephenson’s office (the conversation with an employee (identified as a woman in cross-examination) to which he deposed at [5] of his affidavit).

Evidence in Monique’s defence

1. [449]

   In Monique’s defence of Robert’s claim, she gave evidence as did various members of her family (her sons, Luke and Hamish Wye, and her half sister, Louise Harland-Cox and Hamish Wye), a neighbour of Trevor and Patricia (Ms Loretta Robinson) and their long-standing employee (Pharron Wayne “Aussie” Hatton). Monique was cross-examined but none of her children nor her half-sister, Louise, was required for cross-examination (13/06/24; T 86.12; 14/8/24; T 245.10); nor was Ms Robinson. Mr Hatton was cross-examined. An affidavit that had been sworn by Trevor before his death was admitted as an exhibit (Ex 3). The weight to be attached to this must of course take into account the fact that Trevor was not available for cross-examination.

2. [450]

   Monique has sworn a number of affidavits in the respective proceedings: an affidavit of executor on 11 October 2023 and an updating affidavit on 11 July 2024 as well as two affidavits (one on each of those dates) responding to Robert’s 4 September 2023 affidavit and deposing to her personal circumstances and then updating the information contained therein.

3. [451]

   As to the value of the estate, Monique deposed in her first affidavit that the net distributable estate was valued at $11,957,864.43, subject to the payment of the costs of the proceedings ([34] of affidavit sworn 11 October 2023of Executor of Lorraine Monique Wye). In her updating affidavit, Monique deposed that the assets remaining in the estate were valued in total as $11,750,690.37. Gidgerygah (which remains registered in Trevor’s name due to a caveat lodged by Robert on the title) was valued at $5,699,274.40 ([20] of updating affidavit sworn 11 July 2024of Executor of Lorraine Monique Wye).

4. [452]

   In her response to Robert’s affidavit, part of which was read as assertion, Monique deposed to matters relating to Robert’s asserted dependence on Trevor. In particular, Monique deposed that: Trevor and Patricia kept separate bank accounts and (from her knowledge gained when assisting her father after Patricia died to deal with her estate) did not give Robert money or gifts ([5(b)] of affidavit sworn 11 October 2023 of Lorraine Monique Wye); that Robert occasionally spent the night at the house Trevor shared with Patricia when he visited Patricia but was treated as any other person who visited them ([5(c)]); that Trevor never referred to Robert as his son or step-son but always referred to him and Ben as “Pat’s boys” ([5(d)]).

5. [453]

   From [6]-[18], Monique corrects various aspects of Robert’s evidence as to when her father commenced living in a property on the Sanderson family estate and her father’s relationship with Patricia based on her recollection of family events. Monique disagrees with Robert’s evidence that he worked with Trevor on a daily basis, deposing that she could not recall if Robert and Trevor worked together when Trevor was living at Gidgerygah but that she remembered that Trevor would take instructions from the then manager of the properties (Niall Campbell). Monique deposed that when she visited Trevor at Gidgerygah he was working on his own and she did not see him with either of the Wilcox boys in any work capacity. As to the period from 1993-2006, Monique’s understanding, from her conversations with Trevor, was that Robert visited Trevor and Patricia at Wangrawally from 1996 onwards approximately once or twice a year, usually for Christmas but that he only stayed for a couple of nights at most and did not assist with any work for Trevor.

6. [454]

   Monique also takes issue with Robert’s evidence that he lived at Wangrawally in 1998 while he had appendicitis (based on the fact that she often visited Wangrawally in 1998 when she had her first child and did not recall seeing Robert convalescing there at any of the times she visited) and with his evidence that he visited Wangrawally on weekends while he was at Cubbie Station (based on the fact that Trevor did not mention Robert coming to visit and that Trevor usually filled her in on which visitors had been there) ([9]-[10]).

7. [455]

   As to Robert’s evidence that he attended family functions, weddings, funerals and social events with Trevor between 1990 and 2006, Monique disputes this on the basis that she attended many such functions and never saw Robert at any of those events. Monique also takes issue with Robert’s evidence as to her father’s hip replacement (saying that it was in 2007 not 2005 and that Robert did not provide any assistance to Trevor before or after the surgery) and as to her father’s hand injury (which she says was over twenty years before Trevor started working on the properties owned by Ian Sanderson and that Trevor was able to work and manage properties with no issues with his hand) ([11(e)]-[12]). Monique also disputes Robert’s evidence that her father was not managing the properties between 2006 and 2010 ([12(b)]).

8. [456]

   Monique’s evidence is that her father had several conversations with her about Robert where her father said Robert was not to be trusted ([6](c)); that around the time of Ian’s funeral Trevor commented on how angry he was with the way “Pat’s boys have caused trouble and upset Pat” and that he said that the way they talked to her was horrible and they always left her hurting and upset ([14(a)]).

9. [457]

   Monique deposed to the closeness of her relationship with her father ([19]ff) over the years. Monique deposed (at [36]) to her father’s account of the incident that led to Robert filing an apprehended violence order (AVO) against him some time in early 2014 (namely that Trevor told her that Robert was speaking to Patricia on the phone and she was becoming upset, so Trevor took the phone off Patricia and told Robert to leave his mother alone; and that Robert claimed, and Trevor denied, that Trevor threatened to shoot him); and (at [38]) to a conversation with Patricia in March or April 2014 when Trevor was in hospital in Sydney and Patricia rang her to ask her to go to the police when she learnt that Robert knew where Trevor was in hospital.

10. [458]

    Monique has also deposed to her attendance at Patricia’s funeral and the AVO hearing the following day, where she says that Robert said some very hurtful things about Trevor ([42]-[43]); as well as her father’s diagnosis with cancer in November 2021, medical treatment and hospitalisations; and conversations with her father (and his stepson, Raymond Watson) as to his testamentary intentions ([50]-[54]).

11. [459]

    Finally, Monique deposes to her personal circumstances, including her medical conditions (high blood pressure, depression, asthma, a bad back and severe osteoarthritis in her knees which she has been told will likely require knew replacements in the next ten years), her current employment as a school administration officer and the primary producer partnership with her husband on their property, as well as her husband’s employment as a process operator for a mining company. Her affidavit deposes to her and her husband’s assets and liabilities and the position of the partnership; and to the small cottage business that she runs as a sole trader in her spare time ([56]-[69]).

12. [460]

    Under Trevor’s Will, Monique’s primary gift is a 45% share of Gidgerygah. Monique has deposed that she wishes to continue to operate Gidgerygah as a farming enterprise and use her share of any income generated to supplement her family’s income ([69]); and to increase her superannuation fund and reduce the debts owed by her and her husband with respect to the partnership, to expand her small cottage business, and to allow her and her husband to travel around Australia ([70]).

13. [461]

    Monique’s updating affidavit provides an updated summary of the financial information in her first affidavit, including her husband’s increased savings due to an inheritance from his mother’s estate, but broadly her financial circumstances remain the same.

14. [462]

    In cross-examination, Monique was questioned as to the frequency of her visits to Wangrawally (relevant to her evidence as to whether Robert was living there in the periods to which he had deposed). Monique said that at no time did she move in and become part of their household (14/8/24; T 251.39); that at the time that the relationship between Trevor and Patricia began in around 1994 she was living just over two hours away and that she visited her father every few months; and that the visits increased once the couple began living together (monthly or every few months) (14/8/24; T 251.1-12).

15. [463]

    Monique readily accepted that she would not have seen Robert if he had stayed at Wangrawally when she was not there (14/8/24; T 252.17) (as is obvious) and that Robert could have been there on occasions when she was not (14/8/24; T 253.11) but she disagreed that Walgett was Robert’s home base (based on conversations with Patricia and her father).

16. [464]

    In the period from 1993 to 2006, Monique said that she made frequent visits (every couple of months at minimum) and had constant discussions with her father (14/8/24; T 255.1-2). She said that she visited there more often once she had her first child in 1998. Monique agreed that there was no room allocated to Robert at Wangrawally (14/8/24; T 258.34).

17. [465]

    My observation of Monique was that she did not overstate matters and she made appropriate concessions in her evidence.

18. [466]

    Exhibit 3 in the proceedings is an affidavit sworn by Trevor on 19 November 2020 and filed in the 2019 proceedings commenced by Ben. In that affidavit, Trevor deposed to his relationship with Patricia and exhibited to that affidavit was a bundle of documents comprising copies of Patricia’s diary entries. Trevor there deposes that he and Patricia had a loving caring relationship for many years ([9]) referring to particular diary entries in support of that conclusion; and that Patricia’s relationship with her sons deteriorated after they commenced proceedings against her in relation to her late father’s estate ([10]), referring to numerous diary entries to support that observation.

19. [467]

    In that affidavit, Trevor responds to an affidavit that Robert had sworn on 17 July 2020 (a copy of which is not in evidence). At [13]-[16], Robert deposes to his friendship with Trevor Bridger, who died on 14 October 2020, who visited, including with his children sometimes, from time to time and who stayed occasionally at Wangrawally or Allawa (including at Trevor’s request for help when Patricia was ill and Trevor needed medical attention in Sydney).

20. [468]

    At [19], Trevor deposes that Robert “hardly ever contacted Pat, probably 2-3 times a year at most, and when he did, he would upset her to the point of tears, and she did not want to speak to him”. At [20], Trevor deposed that once the court case with Ian Sanderson’s estate “heated up”, Robert tried to contact Patricia more often but she did not want to talk to him.

21. [469]

    At [21], Trevor deposed to a telephone call between Patricia and Robert (on an occasion when he, Patricia, Trevor Bridger and Wayne Hatton were present). Trevor deposed that Patricia took the call “and the next thing she was in tears”. Trevor said that he asked her if it was Robert and she handed the phone to him; and that he told Robert not to ring her back. Trevor’s account of the conversation was that Robert asked him “are you threatening me?” and that he, Trevor, said “No, you’re not worth threatening, you’re a grub” and that he hung up.

22. [470]

    Trevor has also deposed that when Patricia was admitted to hospital he contacted Robert and Ben (at her request) possibly on 16 August 2014, to let them know what was happening and that if they wanted to see her for a final time they should come sooner rather than later ([22]) but that on 17 August 2014, Patricia told him that she did not want to see Robert “because of the strife he's caused” and that she had instructed the nursing staff to that effect ([23]).

23. [471]

    Trevor also deposed that it was Patricia’s idea to sell Allawa “to square up with the banks” and that Patricia agreed to sell the property to Greg Weber (who she said was a good friend to her and whom she had “always felt was the son to me that my own weren’t”) and that she said that she was going to let him have it cheap for that reason ([25]). Trevor deposed that the sale of Allawa was done “as per Pat’s instructions prior to her death” ([26]).

24. [472]

    As to their wedding, Trevor (in response to an affidavit sworn by another witness in Ben’s proceedings, Eliza Showell, who Robert has referred to as Ben’s girlfriend in August 2016 – see his 2021 Affidavit at [93]) deposed that it was Patricia’s suggestion that they marry and that she had been very vocal in saying that they had had a long enough engagement of 20 plus years and she did not want a headstone with “Wilcox” on it ([32]).

25. [473]

    Luke, Trevor’s grandson and a beneficiary under his will, affirmed an affidavit on 6 October 2023 in which he deposed to his relationship with his grandfather and step-grandmother, to the many school holidays spent at Wangrawally (and that during his visits there he never saw Robert visiting or living at the property and did not recall ever having met Robert ([4]-[7])), and to his continuing relationship with Trevor when he left the family farm to attend university in Canberra ([8]). Luke gave the eulogy at Trevor’s funeral and did not see Robert at the funeral ([9]).

26. [474]

    Luke also deposed to Trevor having expressed anger towards Robert and Ben for the hurt, stress and emotional toll that the 2010 Proceeding caused Patricia and himself ([12]) and to his observation of his grandfather’s stress during that litigation ([13]), as well as Trevor’s frustration at the proceedings commenced against Patricia’s estate ([14]) and concern that Robert would commence proceedings against his own estate when he died and the stress and burden of the proceedings would pass to his next of kin and it would never end ([15]).

27. [475]

    Luke has deposed to his assets and liabilities ([17]; Annexure A) and to his intention to use his share of Trevor’s estate to pay off his HECS debt (approximately $47,000) and purchase an apartment in Sydney ([18]).

28. [476]

    Louise is Trevor’s daughter with his first wife (Dorothy). She is employed as a Chief Executive Officer of the Public Relations Institute of Australia. Louise is married with four children. Louise and her children are the residuary beneficiaries of Trevor’s estate. Louise has deposed to her relationship with her father ([4]-[5]), explaining that she was approximately three years old when her parents divorced; that she lived with her mother during her childhood and visited her father during school holidays; that they drifted apart during her teenage years but reconnected at Monique’s wedding in 1996; and that after she moved to Sydney in 1996 she spoke with her father on the telephone every couple of weeks and visited Wangrawally a couple of times a year. Louise also deposes to the maintenance of her relationship with her father when she moved to London for work and his relationship with her children ([8]-[13]) and her assistance when Trevor became unwell in 2014 and Patricia was receiving treatment for pancreatic cancer ([14]).

29. [477]

    Louise has deposed that she only met Robert four times (the first in 1998 when she was staying at Wangrawally and Robert visited but did not stay there during her visit; the second in Sydney a couple of weeks later to pick up a book she had left at Wangrawally; the third at Patricia’s funeral in August 2014; and then at the AVO hearing ([6])).

30. [478]

    Louise has deposed that at the AVO hearing, among other things, Robert refused to acknowledge the relationship between Trevor and Patricia ([16]).

31. [479]

    Louise has also deposed to the anger expressed by Trevor about the proceedings Robert had brought against his grandfather’s estate and his distress at the proceedings regarding Patricia’s will ([17]).

32. [480]

    Louise has given evidence as to her (and her husband’s) assets and liabilities and to the medical needs of their four children (two of whom have been diagnosed with ADHD and autism, another with ADHD, and the fourth undergoing major orthodontic treatment) and of her husband (who has been diagnosed with diabetes, depression and ADHD) ([24]-[28]) and to her intention to use her share from the estate to purchase an investment property to fund the rent for her family (they are currently renting a property in Sydney). As to her children’s share of the estate, Louise intends to use the money to pay the ongoing costs of their medical treatment and for their educational expenses.

33. [481]

    Hamish is another grandson of Trevor. He has sworn an affidavit on 6 October 2023. Hamish is a rural contractor. He has deposed that from about 2007 or 2008 he spent most of his school holidays at Wangrawally; that he has never met Robert nor has he ever seen him on Wangrawally or any of the other properties managed by his grandfather ([3]). Hamish has deposed to his relationship with his grandfather and his grandfather’s wish that the properties stay in the family. Hamish has also deposed that a few months before he died Trevor told him that he was leaving Wangrawally to him ([12]) and that he hoped Hamish would have the property behind him to buy out anyone else in the family who decided to sell their part of the land. Hamish also deposed to a conversation a couple of days before Trevor died in which Trevor expressed concern that Robert would give them trouble after he died “like he did to [Trevor] when Pat died and did to Pat when his grandfather Ian died” and said that he would turn in his grave if Robert got “his dirty hands on this place” ([13]).

34. [482]

    Under Trevor’s will, Hamish was left Wangrawally and Hamish has deposed to his intention to continue running the property as a pastoral company with majority cattle and sheep and hopefully to expand it into growing and making hay ([14]).

35. [483]

    Ms Loretta Robinson, a teacher and neighbour of Patricia and Trevor, who lives approximately 4km from Wangrawally, gave evidence by way of an affidavit sworn 5 October 2023, which was not challenged in cross-examination, to the effect that she was a friend of Trevor ([2]) and that she was a regular visitor to the household from approximately 1995 ([4(a)]). Ms Robinson deposed that when she visited she mostly spent time in their kitchen and that when they had friends or family staying at the property she often saw them in the kitchen and saw their cars parked outside.

36. [484]

    Ms Robinson deposed that since 1995 she had never seen Robert at Wangrawally when she visited; that she only recalled having seen Robert three times (in the early 2000s at an ANZAC service in Carinda when Robert was with his grandfather; in about 2021 when she saw him having a coffee by himself at a Walgett café; and at Patricia’s funeral in 2014) ([4(b)]). Ms Robinson disputed that Robert visited the “properties” or did any work on the properties between 1995 and 2006, deposing that she was a casual teacher in Walgett and frequently drove the roads from her property to Walgett, many times passing Ian and Trevor on the road and stopping to have a chat with them about the properties and never saw Robert with them nor did she recall either of them mentioning that Robert was visiting or assisting with any work on the properties ([6(a)]).

37. [485]

    Ms Robinson did not recall Robert living at Wangrawally in 1998 and that she saw Trevor and Patricia approximately every month that year and visited Wangrawally a couple of times that year ([7(a)]). Ms Robinson deposed that she attended many celebrations and social events with Patricia and Trevor and never saw Robert at any of those events ([8(a)]). Similarly, Ms Robinson deposed that in 2010 she visited Wangrawally approximately once a month and spoke to Patricia and Trevor most fortnights and that she did not recall seeing Robert at Wangrawally in 2010 ([11(a)]). Nor did she recall seeing Robert at Wangrawally in 2007, the year she says Trevor had his hip replaced ([9(a)]).

38. [486]

    Ms Robinson also deposed to Trevor having said to her on many occasions “how can sons treat their mother like they do” and that Trevor did not want them near their home ([8(b)]); and to Trevor and other members of the community telling her after Patricia died in 2014 that Robert had spread rumours about Trevor’s marriage to Patricia not being a real marriage which had upset Trevor ([8(c)]).

39. [487]

    Mr Hatton, a farm owner and Trevor’s friend and co-worker, swore an affidavit on 19 October 2023, deposing to his relationship with Trevor. Mr Hatton commenced working for Ian Sanderson in 1992 on a number of properties, working part time until 1993 and then full time, working on the properties for approximately 20 years until 2015. Mr Hatton deposed that he first met Trevor in 1991 when Trevor commenced working for Ian Sanderson and was living at Gidgerygah; and that after Trevor became the manager he moved to Wangrawally. Mr Hatton deposed that he used to pull into the house at Wangrawally most mornings and speak to Trevor. His evidence was that:

40. [488]

    In cross-examination, Mr Hatton said that he first started working for the Sandersons in 1992 (part-time at first and then permanent) and that he worked 5/7 days a week depending on what was going on (14/8/24; T 261.22-32). Mr Hatton worked there for 20 years.

41. [489]

    Mr Hatton was adamant that Robert did not assist him on the properties. He recalled that Robert came a couple of times with his grandfather when they were dipping (14/8/24; T 263) but only two times and he said Robert only helped with the dipping once. Mr Hatton said that it was a lie that Robert had helped with the sheep, shearing, crutching or moving stock (14/8/24; T 264). As to mechanical work he said at (14/8/24; T 265.14) “never seen him work anything at all”; and said as to farm work “[n]ot while I was there, mate, he never” (14/8/24; T 265.26). Mr Hatton said that he was out there at the farm “every day, nearly… [a]part from an odd weekend and whatever” (14/8/24; T 265.36). Mr Hatton lived in the town.

42. [490]

    Mr Hatton was adamant that he never saw Robert helping Trevor (14/8/24; T 266.31).

43. [491]

    Mr Hatton was laconic and matter of fact in giving his evidence.

44. [492]

    Monique’s solicitor, Anthea Kennedy, has deposed by affidavit sworn on 6 August 2024 that her estimate of Monique’s costs and disbursements in both proceedings, calculated on the indemnity basis, inclusive of GST up to and including completion of the hearing totals $256,343.12 ([3]) and that the costs of the proceedings commenced by Ben have been assessed at $37,074.96 including the costs of the costs assessment process and interest; and that they are in the process of recovering those costs from the trustees in bankruptcy of Ben’s estate ([4]). Ms Kennedy has also sworn an affidavit on 28 September 2023 deposing to formal matters, namely service of the notice of Robert’s claim on the or on behalf of the beneficiaries and eligible persons.

Credibility of witnesses

1. [493]

   The main challenge to the credibility of any of the witnesses was to that of Robert. Monique contends for a finding that Robert was a dishonest witness and that his evidence should not be relied upon unless corroborated by independent reliable evidence or adverse to his case. Monique submits that Robert lied repeatedly in his affidavit evidence, during cross-examination and elsewhere (such as in correspondence and on Facebook); and says that he persisted in asserting his lies during cross-examination even when they became untenable (and that even when caught in a lie he sought cover in other lies). Monique contends that Robert’s mendacity was “guided by an unmitigated desire to advance his proprietary claims at all costs”. In contrast, for Robert it is submitted that he (a self-described layman) gave his evidence in a straight-forward and very open manner and that he withstood rigorous cross-examination.

2. [494]

   In support of her contention for a finding of dishonesty in relation to Robert, Monique refers to the following four examples of his evidence noted earlier.

3. [495]

   Monique maintains that Robert’s evidence as to his whereabouts in 2002 (i.e., that he returned from the Northern Territory in December 2001 and, after his return, lived with Ian Sanderson at Allawa for “well over a year”) involved a deliberate lie aimed at casting doubt over the validity of the 2002 Will and Power of Attorney.

4. [496]

   Monique says that, insofar as [47] of the 2021 Affidavit suggests that Robert was by his grandfather’s side for all of 2002, this was knowingly false, pointing to the contrary evidence in Robert’s 2011 Affidavit and that given by him in cross-examination in 2012 (referred to above).

5. [497]

   As to Robert’s dealings with Mr Davie, Monique submits that these reflect most poorly on Robert’s credibility, as does Robert’s evidence of his conversations with Mr Davie (which Monique points out are inconsistent with the contemporaneous communications from Mr Davie). Monique contends that Robert’s evidence of these conversations is concocted.

6. [498]

   So, for example, Monique submits that the conversation set out at [49](b) of the 2021 Affidavit was false, i.e., that Robert did not show Mr Davie the 2002 Will at that time and Mr Davie did not respond that there was no way he and his wife signed it.

7. [499]

   Monique submits that Robert pressured Mr Davie to sign the statutory declaration using a veiled threat and points to the difference between the conversation set out at [49] of Robert’s 2021 Affidavit and Mr Davie’s email correspondence. Monique also says that the threat made in Robert’s email (i.e., of going to the police alleging that Mr and Mrs Davie were accessories to forgery and a fraud on the Court) and that Robert’s explanation for it in cross-examination reflect badly upon his credit.

8. [500]

   Monique further submits that Robert’s dealings with Mr Davie demonstrate that he is willing to do whatever it takes to advance his claims, even threatening an elderly witness in an attempt to pressure them to give a statutory declaration which he knew was false.

9. [501]

   As to the explanations given by Robert, during cross-examination, as to why the alleged trust conversations were included in his 2021 Affidavit but not in his 2011 Affidavit, Monique says these were unconvincing, inconsistent and “moved around like jelly on a plate”. I agree.

10. [502]

    Monique argues that if Robert’s explanation was that he could not recall the conversations in 2011, this would be a powerful indication that they simply did not happen; and that, at best, their inclusion in the 2021 Affidavit would be a matter of reconstruction, not recollection (but she submits that the reality is that the conversations are “works of fiction”).

11. [503]

    Monique points out that for Robert’s evidence (that his solicitors advised him not to mention the trusts or to take out reference to the trust conversations), to be correct, Robert would have needed to have recalled and related the alleged trust conversations to his lawyers in 2011 (contradicting the evidence given by Robert that he did not remember those conversations at that time).

12. [504]

    Monique argues that the inconsistency of Robert’s explanations as to this issue showed him to be “a witness willing to proffer any explanation to the Court that he thinks ‘may stick’, regardless of whether it was true”.

13. [505]

    Monique says that Robert’s evidence that he doubted ever looking at his 2011 Affidavit when making his 2021 Affidavit, cannot be right, noting that the 2021 Affidavit exhibited the 2011 Affidavit and provided an explanation as to why the 2011 Affidavit did not mention the alleged trusts.

14. [506]

    Monique argues that the evidence Robert gave that he simply deposed to the alleged promise conversations in his 2021 Affidavit from memory (12/8/24; T 58.49-T 59.1), to which he adhered at (12/8/24; T 59.34), cannot be true, noting that those conversations are repeated in near identical terms. Monique points out that Robert had difficulty remembering the contents of his family provision affidavit sworn on 4 September 2023, and even the events that had occurred several days earlier in the hearing (13/8/24; T 90.20-29); and that he admitted he had difficulty remembering events from three years ago when he prepared his 2021 Affidavit (and claimed not to have even been able to recall the alleged trust conversations in 2011) (13/8/24; T 105.17-20; T 108.36-45; T 118.29-46).

15. [507]

    Monique also points to the difficulty Robert had in recalling the terms of a particular alleged conversation (with his grandfather concerning a windmill) even after only having shortly before read the two (identical) versions of that conversation in his 2011 and 2021 Affidavits (12/8/24; T 60.16-23). It is noted that Robert suggested that his then solicitor (Rupert Gray) might have written the affidavit but then accepted that Mr Gray merely typed the affidavit based on what Robert told him (12/8/24; T 6-/31-48). Robert nevertheless continued to give evidence that he had not had regard to the 2011 affidavit in making the 2021 Affidavit (12/8/24; T 61).

16. [508]

    Monique submits that this demonstrates Robert’s willingness to lie when he considers it is in his interest to do so. Monique submits that it is obvious that Robert used the 2011 Affidavit as a base for his 2021 Affidavit, adopting many of the conversations in identical or near identical terms, other than the nature of the alleged trust (and annexed to her submissions is a list of some comparable paragraphs in each affidavit, the detail of which it is not necessary here to set out).

17. [509]

    Finally, Monique submits that Robert’s character (as also his credibility), is further undermined by the comments he made in the Facebook posts.

18. [510]

    Monique argues that this shows a willingness by Robert to make such allegations in an effort to advance his case that the rural properties ought to belong to him and Ben.

19. [511]

    Robert was by no means a timid witness. He was argumentative (see 12/8/24; T 56.21; T 60.31; 13/8/24; T 89.1 (“So I didn’t live there at all?”); 13/8/24; T 108.1 (“Do you want the serial number of the Landcruiser?”) 13/8/24; T 162; 13/8/24; T 165; 15/8/24; T 273; 15/8/24; T 274-T 275), confrontational (see 12/8/24; T 119), where he accuses counsel of trying to confuse him (13/8/24; T 124.30), where he accuses counsel of trying to trick him (13/8/24; T 141.21), where he accuses counsel of trying to catch him out on technicalities (12/8/24; T 69.2) (“should it have been?” (three times)) (13/8/24; T 87.24) (“what are you trying to say”) (13/8/24; T 97.36), (“what are you trying to say, I’m making this up?”), (13/8/24; T 98.27) (“you’re arguing over the dates”), cagey (see 13/8/24; T 156.18) (“I see your angle”). More than once, Robert challenged the cross-examiner to adduce evidence from Mr Davie – a rather bold challenge in the light of the documentary evidence of Mr Davie’s absolute certainty as to his and his wife’s signatures on the Will (see 12/8/24; T 99;T 103; T 290).

20. [512]

    Robert had a tendency to blame others (12/8/24; T 60.31) (“[w]ell I think Rupert Gray might have written it”), and see his evidence as to the statutory declaration that he said he dictated to some “bloke” whose name he could not remember and who must have made a mistake (see 15/8/24; T 281.30). At 15/8/24; T 287.23 confronted with the impossibility of him having seen his mother doing anything when she was 12 years old he said obviously it’s a misprint, “[o]bviously I didn’t type this”.

21. [513]

    Robert was not only argumentative in manner but he also tended to argue his cause (see 13/8/24; T 105.46 – “if that [1987] will is real” before saying it was void anyway and his assertions as to the power of attorney being a forgery and the “real will” is a photocopy in the probate file). He also made statements seemingly off the top of his head (15/8/24 T 282.26 – actually can’t remember getting Davie’s email, and that he might not have read it 15/8/24; T 283.8); and saying that he never used a computer, which he immediately corrected (12/8/24; T 60.31-35).

22. [514]

    Robert also had a tendency to exaggerate certain matters, such as the time he allegedly spent at the family properties (i.e., that he “worked there 45 years” and “all his life”) (13/8/24; 56.38; T 135.2).

23. [515]

    There is no doubt that Robert is firmly of the view that he has been deprived of what he considers to be his rightful inheritance (i.e., that he has been hard done by). He had no hesitation in saying “absolutely” when asked if he had been focused on getting the properties (see at 12/8/24; T 62.47) and he expressed himself to be heartbroken at what has happened (13/8/24; T 181.22). Emphasis was placed by him on the Walgett Properties having been in his family for 150 years and he is aggrieved that they are now “outside” the family. At 12/8/24; T 63.1, his response to whether he had devoted his life to getting them back was “well they were ours to start with”. Tellingly, Robert’s statement that Trevor could have “flick[ed] me [one of those properties] (T 168.48) shows complete lack of understanding as to the impact of his conduct towards Trevor and Patricia over time.

24. [516]

    While I can accept that Robert gave his evidence in a rough and ready fashion, I cannot accept that he did so in a “straight-forward and very open manner” (as his solicitor suggested). Rather, as Monique’s submissions have highlighted, his evidence was contradictory in relation to a number of topics and did not withstand reference to contemporaneous documents (such as his assertions as to whether he had even read the email communication from Mr Davie to which it is in evidence that he later had responded; and his assertion that he had not read his 2011 Affidavit when preparing his 2021 Affidavit even though the latter was annexed the former and made reference to it when explaining the absence of reference in the former to the trust conversations). Robert’s explanations as to various matters lacked credibility (such as the evidence that he had not recalled the “trust” conversations back in 2011 and only recalled them in 2021, when his evidence was that he was advised not to mention the alleged trust by his then solicitor – first identified as Mr Macaulay and then it seems his assistant Mr Andrews; or that it was too late to plead then by Mr Miller).

25. [517]

    The suggestion (made more than once) that Robert recalled more communications as time went on flies in the face of his professed liability to recall other more recent matters. Rather, the conclusion I would draw is that Robert has become so fixated with his claim that he is interpreting words and putting a gloss on conversations he professes to recall in order to advance his case. This is a very clear example of the phenomenon recognised in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman).

26. [518]

    Robert’s evidence as to his recollection of the “trust” conversations, i.e., that he did not remember them in 2011 but that as time went on he remembered more, lacked plausibility (12/8/24; T 67.33; T 67.49; T 70; 13/8/24; T 105; T 114; T 118; T 168) and I do not accept it.

27. [519]

    Nor do I accept the submission that Robert “withstood rigorous cross-examination”. Rather, the cross-examination (which was not aggressive in tone nor framed in a confusing way, as Robert suggested) exposed the glaring inconsistencies in Robert’s affidavit evidence (significantly so in that various of those inconsistencies – particularly as to his residence at the Walgett Properties during the period in which he claims he was a part of Trevor’s household and dependent on him – are conveniently attributable to the successive claims that Robert has made for provision out of the estates of his grandfather, his mother and now his step-father).

28. [520]

    The reluctance of Robert to concede that his criticisms of Trevor caused tension with Patricia (only accepting this as possible and then saying it was “not a great deal”) (13/8/24; T 115.11) and the suggestion “actually we weren’t very good friends but we got on” (13/8/24; T 156.9) flies in the face of Patricia’s diary entries and Trevor’s affidavit evidence, and the recollection of others (including Ms Robinson). Robert’s assertion that the relationship with Trevor was civil and that no doubt they were friends is belied by his attempts to minimise Trevor’s relationship with Patricia (see 13/8/24; T 157.8 where Robert made clear his view that Patricia was Trevor’s “golden goose” and that Trevor was only after the money (13/8/24; T 156.45)).

29. [521]

    The apparent willingness of Robert to persist in making snide or derisory comments or accusations about Patricia and Trevor (see at 12/8/24; T 69.50 as to his insistence that the same sex partner allegation was true (though saying “it’s none of my business”)) and to put pressure on an elderly man (Mr Davie) to make a statutory declaration that Mr Davie obviously considered to be false certainly does not stand to Robert’s credit; but those matters of themselves would not cause me to make a finding of dishonesty. Rather, they show Robert to be something of a bully. Robert’s seeming perplexity as to why Mr Davie would not sign the statutory declaration or why “he wouldn’t help me” is a staggering example of self-delusion (15/8/24; T 293.49). It is obvious why Mr Davie was refusing to do so – he said it in black and white in his email correspondence. So too was Robert’s extraordinary denial of pressuring Mr Davie “[w]ell I haven’t sworn at him or anything” and the suggestion by Robert that he did not want to subpoena Mr Davie because he’s an “older gent” (15/8/24; T 292. 31; T 295.18).

30. [522]

    Considering Robert’s evidence as a whole, I have concluded that Robert is an unreliable witness and lacking in credibility. I do not need to go so far as to make a finding of dishonesty. Rather, I consider that Robert is someone who has become so fixated on his belief as to his entitlement to the Walgett Properties (that are now outside the family) and the righteousness of his claims that he has a tendency to cast events, and put a gloss on conversations, in the light most favourable to his claims.

31. [523]

    The suggestion that Mr Davie denied having witnessed the 2002 Will is a clear example of this. Mr Davie was adamant (“absolutely certain”) that the signatures on the document that he was shown were those of himself and his wife; and he refused (even when threatened with a referral to the authorities as someone accessory to a forgery) to make a statutory declaration to the contrary. The fact that he did not recall witnessing the 2002 Will does not detract from this, particularly for someone who said he had witnessed numerous signatures over his lifetime.

32. [524]

    Another example is Robert’s complaint that he is “homeless”, when by this he means that he does not own property. He is not “on the street”, so to speak. He lives with friends in a rented property at Double Bay (12/8/24; T 36.46; 13/8/24; T 163.13-15), the rent for which he says he scrapes together with the assistance of friends and cash from a courier business that he did not disclose in his affidavit.

33. [525]

    I therefore treat with extreme caution assertions by Robert that are not corroborated by independent objective evidence; and I place most weight on any contemporaneous documents in this regard.

34. [526]

    The defendants do not contend for any credit findings concerning the balance of Robert’s witnesses, submitting that their evidence would be approached (in the usual way) with caution given that it is of conversations which occurred in the 1980s. Monique says that this is particularly so in circumstances where each of the witnesses was a relative of Robert’s (and, she submits, understandably interested in assisting him however they can). Monique also points out that Stuart gave evidence in cross-examination that he has been regularly updated by Robert about his case, and received a copy of the 1962 Trust Deed shortly after it was disclosed; and that he in turn discussed this with his wife, Tracy.

35. [527]

    I can be brief as to the other witnesses called by Robert.

36. [528]

    As to Douglas, it was obvious that he has a firm view as to Robert’s “entitlement”. This, however, is based on his own conviction as to the wisdom of holding properties in trust (of which he says he was aware at a remarkably young age). The conclusion that Douglas drew from an overheard conversation about trustees and capital gains tax and a piece of paper he did not even see, does not persuade me that what was there being discussed was in fact a trust that had been established by trust deed or otherwise in favour of Robert and Ben (as opposed to a future testamentary or other trust).

37. [529]

    As to Stuart and Tracy, I accept that they were honest witnesses in giving their recollections of conversations many years ago. Tracy in particular spoke with evident feeling when she said she had “put up” with this all her married life. However, even accepting their account of what Patricia is said to have said in an attempt to persuade them to side with Robert Snr in the family dispute, this does not persuade me to the requisite degree of satisfaction that all these properties were the subject of a trust. An equally available possibility is that Patricia either thought (mistakenly) this was the case or that she was playing on their charity in this respect.

38. [530]

    As to the defence witnesses, Monique submitted that Mr Duffy, and each of the witnesses who gave evidence in her case, presented as a careful and honest witnesses.

39. [531]

    As to Mr Duffy, he struck me as someone who was being careful to ensure that he answered accurately to the best of his ability. When he did not recall something he said so and he did not speculate on possibilities. When he was challenged as to the date of Mr Stephenson’s death he readily conceded that his affidavit may have been incorrect. He was slow in answering at times but my impression was that this was nothing more than trying to understand what he was being asked or perhaps a general tendency to be slow or ponderous in answering questions. His confusion over dates at one point reinforced that impression. There is certainly nothing to support the serious accusations levelled against him by Robert. Indeed, even if evidence of the safe custody register at Garland Hawthorn Brahe disclosed that Mr Duffy had removed some Sanderson family or company document or documents many years ago, that would tell me nothing more than that he was mistaken in saying that he had not done so. (Indeed, as adverted to earlier, it is possible that all he might have done was authorise documents to be taken out of safe custody and forwarded to another firm such as that of Mr Chapple at some point. What this shows is the danger of speculation.) There is certainly nothing implausible about Mr Duffy not having taken steps to familiarise himself with the Sanderson family affairs after Mr Bambach died unless and at least until he was required to do so for some purpose.

40. [532]

    For Mr Chapple, it is said that as he was not required for cross-examination his evidence may be taken at its highest (and this provides a complete answer to the claim that the Court of Appeal decision should be set aside even assuming a Court sitting at first instance could do so). I accept that his evidence was unchallenged by any cross-examination although, as noted earlier, there was a belated application to reopen the case and cross-examine Mr Chapple on the basis of whatever might have come to light from subpoenas then yet to have been issued (another exercise in speculation). While Robert certainly takes issue with Mr Chapple’s role in the proceedings, Mr Chapple’s account of events is inherently plausible and I accept it.

41. [533]

    In Monique’s case, she was the principal witness. Monique struck me as open and honest. Monique was clearly prepared to concede matters where appropriate and did not embellish her account of events. I have no hesitation in accepting her as a credible witness. As for Mr Hatton, he was laconic and to the point. He gave evidence in a very direct fashion and spoke with feeling when he denied Robert having worked with him on the properties or having been working with Trevor. Again, I accept his evidence without hesitation.

42. [534]

    The evidence of the other defence witnesses, who were not cross-examined, is accepted.

Release

1. [535]

   As noted, both active defendants contend that the trust claims were released by Robert in the Settlement Deed entered into on 18 December 2015 in which he released Mr Chapple and Patricia’s estate from claims concerning Patricia’s estate.

2. [536]

   Clause 2.1 of the Settlement Deed provided that in “full and final settlement of all claims Robert may have in relation to the estate [i.e., Patricia’s Estate]”, Robert received the “Legacy” of $1.1m from the state.

3. [537]

   Clause 3.1 contained the release which provided, relevantly, that:

4. [538]

   Monique contends (and Mr Chapple takes the same position) that the trust claims that Robert now makes in respect of part Barwon Vale and Gidgerygah (as well as the claims in respect of the shares in Sanderson Estates) fall within the terms of the release, noting that Patricia’s estate included the shares in I.F. Sanderson (left to Trevor) and Sanderson Estates (left to Ben). Monique says that the estate’s title to those assets, and the distribution of them in accordance with the 2002 Will, fall within the terms of the release.

5. [539]

   Monique argues (and I accept) that there is no cause to read the release down by reference to the principles in Grant v John Grant (1954) 91 CLR 112; [1954] HCA 23 since on Robert’s own evidence he knew of the trust claims (albeit not of the 1962 Trust Deed) at the time of executing the Settlement Deed. It is noted that Robert claims to have raised those claims in the Court of Appeal hearing on 22 October 2014, after his mother had died (see 13/8/24; T 131.1-15). Further, Monique points out that Robert received the significant benefit of $1.1m out of Patricia’s estate on the basis that the properties were in her estate – not part of a trust in his favour.

6. [540]

   Mr Chapple was a party to the Settlement Deed and relies on it directly as a complete answer to Robert’s trust claims. Monique, who was not a party to the Settlement Deed, contends that she is entitled, as executor of Trevor’s estate, to the benefit of the release: first, because Mr Chapple was a party to the Settlement Deed and he asserts the release in answer to Robert’s claims; and, second, by reference to cl 10.6 which provides that the Settlement Deed “shall be binding upon and inure to the benefit of the parties hereto and to their heirs, executors, successors and assigns and may be pleaded in bar of any action, suit, claim, demand, complaint or proceedings to which this deed relates”.

7. [541]

   Monique points out that in Farrow Mortgage Services Pty Ltd v Hogg (1995) 64 SASR 450, at 458, where Olsson J, with whom Mohr and Bollen JJ agreed, considered it obvious that successors and assigns could enforce deeds containing such a clause, his Honour (at 459) holding that the assignee in that case could enforce the covenants in that deed “regardless of the absence of any original privity between it and the appellants”. Reference is also made in this context to the decision of the Court of Appeal in Nashco Pty Ltd v Yang [2022] NSWCA 137, where such a clause was effective to give an assignee of a party’s business the benefit of a guarantee.

8. [542]

   Monique also submits that the Settlement Deed may be construed as a “hybrid deed” (as described in N Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press)), being, at least in part, a deed poll. The significance of this is that, although only a person expressed to be a party to a deed inter partes can sue on the deed, a person for whose benefit a covenant or grant contained in a deed poll is made can enforce it. Monique argues that the requisite test for the Settlement Deed to be objectively construed as operating at least in part as a deed poll (namely, whether “as a matter of substance, objectively construed, one or more of the parties to the deed intended to use the document to make unilateral promises to or create rights enforceable by third parties… as opposed to intending to make promises to the other parties to the deed” only (see Cong v Shen (No 3) [2021] NSWSC 947)) is met in the present case, referring to the fact that cl 3.1 distinguishes between Mr Chapple (the other party to the Settlement Deed) and the estate and that there is express provision in cl 10.6 that it endures for the benefit of the parties, heirs, executors, successors and assigns.

9. [543]

   Mr Chapple, as already noted, maintains that the broad releases in cl 3.1 provide a complete answer to Robert’s trust claims.

10. [544]

    Robert seems to accept that the “family provision settlement/release” (i.e., the releases in cl 3.1) related to all claims but he says that it was in the context of a “s 95 Succession Act” release of rights; and that the approval of the settlement was “without any inkling that a written trust deed existed”. It is said that the exercise of the Court’s discretion in approving the settlement was without reference to the trust established under the 1962 Trust Deed and that the basis under which the compromise was reached was therefore an incorrect or an incomplete basis, particularly if the existence of the 1962 Trust Deed was known or ought to have been known.

11. [545]

    Reference is made to Daley v Donaldson [2022] NSWCA 96 which Robert says supports his position that the compromise reached in 2015 was on an incorrect basis. Robert’s complaint is that the custodian of the 1962 Trust Deed (which he seems to suggest devolved from Ian Sanderson to his executor (Patricia) and thence to her executor (Mr Chapple)) did not disclose it in 2015 and that “an executor” failed to carry out proper due enquiry and search. Robert says that these failures cannot allow such a wrongdoer now to take advantage of their own failing.

12. [546]

    Robert submits that it is open to the Court to revoke the 2015 (s 95) approval if it has been brought about by fraud or the release of rights was obtained by fraud or undue influence (referring to s 96(2) of the Succession Act). In this context it is submitted that there was equitable fraud (improper purpose) that undermined the 2015 settlement. In written and oral submissions for Robert emphasis was placed on the use of the term fraud being in its equitable sense and not in any other sense of the word. Robert says that it connotes improper purpose “rather than the red-blooded type of Derry v Peek [[1889] UKHL 1] fraud” (referring to the torts of conversion and deceit) or criminal wrongdoing under s 135 of the Crimes Act 1900 (NSW).

13. [547]

    Robert says that the connection of property to a trust came about “for the first time” in 2018 with the discovery of the 1980 letter; and that the 1962 Trust Deed “crystallised” this connection on it being provided to him on 6 August 2024. (Reference is made in this context to the “additional evidence” obtained following 15 August 2024, which has not been admitted, as something that “solidified the connection between the 1962 Trust Deed and the properties held by the 3 family companies”.) Pausing here, this submission simply ignores Robert’s account of earlier conversations with his grandfather about a trust and his account that the topic of a trust or trusts was raised, first with Mr Macaulay and Mr Andrews in relation to the 2010 Proceeding and later with Mr Miller in relation to the very proceedings to which the Settlement Deed relates. It also ignores that the 2010 Proceeding included allegations that his grandfather’s premises about the properties constituted a trust (which he was seeking to have recognised and to enforce in those proceedings).

14. [548]

    Robert submits that it is “strongly arguable” that he has a current present beneficial entitlement to the property of the trust established under the 1962 Trust Deed and says that now that he has become aware of it, he seeks to enforce it. (“Strongly arguable” is not sufficient to establish the existence of the alleged trust.) Robert argues that the failure of any person who, as trustee or successor trustee, failed to keep the 1962 Trust Deed in a place of safe keeping amounts to recklessness and a failure to discharge the fiduciary duties of a trustee to the trust and its objects. Robert submits that “this type of equitable fraud” is sufficient for the purposes of s 96(2) of the Succession Act to “destabilise” the 2015 settlement. In oral submissions it was conceded that if the Settlement Deed were to be set aside then Robert would need to make restitution in respect of the amount received by him under that deed (29/8/24; T 334.22-26; though it is not clear that there is any concession in relation to interest on that amount) but it is submitted that this could be dealt with in due course (out of the fruits of a successful judgment on the trust claims, as I understand the argument).

15. [549]

    As to the submission that the exercise of trust power was for an improper purpose, Robert says that each of Ian Sanderson as trustee of the 1962 Trust and Patricia, Mr Chapple, Trevor and Monique “as successor trustees when acting as estate executors”, being donees of a power, was obliged in the context of the 1962 Trust to exercise his or her powers in good faith for the “end designed” (otherwise it is said that the power was exercised for an improper purpose or there has been a fraud on the power). It is submitted for Robert that the “end designed” of the 1962 Trust was to preserve the trust fund of the 1962 Trust Deed for Robert and Ben “as the equally absolutely entitled beneficiaries” once Patricia (the life income beneficiary) had died and they attained the age of 30 years. (That, however, ignores the provisions of the 1962 Trust Deed pursuant to which the trustee had a discretion to advance the whole of the capital of the fund to Patricia during her lifetime, as I have previously explained.)

16. [550]

    Robert asserts that each of Mr Chapple, Trevor and Monique was aware of the alleged trust in 2015 (when the Settlement Deed was entered into). How each is said on the available evidence to have been aware of the existence of the alleged trust is not made clear. While Patricia must certainly have been aware of the Duffy Letter, as it was addressed to her, it is not apparent that her executor, let alone Trevor and Monique, as administrator of Trevor’s estate, would have been aware of the letter as at 2015. Further, the reference to “covered through trusts” in the Duffy Letter is hardly a model of clarity.

17. [551]

    Robert says that fraud in this connection does not necessarily imply any moral turpitude, referring to the statement in Vatcher v Paull [1915] AC 372 (Vatcher) by Lord Parker before the Privy Council:

18. [552]

    The issue in Vatcher was whether a Deed of Appointment that purported to exclude the issue of Vatcher’s first marriage, and included a condition subsequent with a defeasance in case the condition is not performed, constituted a fraud on the power. It was held that the exercise of the power in question was not a fraud on the power, given it neither benefitted the appointor nor a stranger (i.e., it did not benefit those who were not objects of the power). Vatcher is cited quite widely in connection with this doctrine.

19. [553]

    Reference is also made by Robert to the words of Cohen LJ that “it indicates the doing, of something which is not right, using those words in their broad sense – at least, a deliberate defeating of what the donor of the power authorised and intended” (Re Dick [1953] Ch 343 at 360 (Re Dick)). Re Dick is another oft-cited fraud on a power case. There, a testatrix was a donee of a power of appointment given by her father, who himself declared that the power was to be exercised for the benefit of the testatrix’s brother and sister. The power was exercised (quite obviously) for the benefit of non-objects (her nephew) and was therefore held invalid.

20. [554]

    Robert submits that any property dealt with as part of the estates of Ian Sanderson or Patricia or Trevor that formed property of the 1962 Trust, of which both Robert and Ben were the ultimate beneficiaries, otherwise than in their favour, is beyond the purpose and intent of the power (thus invoking the “improper purpose” doctrine). (For this to be relevant in the context of the present proceedings, this submission assumes that the properties the subject of this claim and the shares in the relevant Sanderson Companies ever became part of the trust fund established by the 1962 Trust Deed.)

21. [555]

    Robert notes that fraud in the sense of dishonesty is not a necessary ingredient in challenging a decision for improper purpose, citing Millett LJ’s statement in Armitage v Nurse [1997] EWCA Civ 1279 that a “trustee who acts with the intention of benefiting persons who are not the objects of the trust is not the less dishonest because he does not intend to benefit himself”.

22. [556]

    Robert says that all persons (presumably referring to the parties in the present proceedings) are now on notice regarding the 1962 Trust Deed and says that, following the communication of the “additional evidence” to the legal representatives of the parties, any dealings with the property of the 1962 Trust that are inconsistent with it (such as intending to benefit a non-object, even if this purpose was not communicated to the non-object before the appointment) is for an improper purpose.

23. [557]

    There appears to be no dispute by Robert that each of Mr Chapple (as a direct party to the Settlement Deed) and Monique (either as someone falling within the provision benefiting successors or assigns; or as a third person entitled to enforce covenants in what should be construed as a hybrid deed) has standing to invoke the release provided in cl 3.1 of the Settlement Deed. Nor does it appear to be disputed that the release is broad enough to cover the trust claims now made in the proceedings.

24. [558]

    Rather, the response by Robert to the defendants’ invocation of the release is, in effect, to contend that the approval of the release pursuant to s 95 of the Succession Act should be revoked or the Settlement Deed be set aside (even though no such relief was pleaded in the further amended statement) on the basis that the approval of the release (or the release itself) was procured by fraud or undue influence, Robert making clear that actual fraud was not alleged, simply equitable fraud or improper purpose.

25. [559]

    Section 95 of the Succession Act provides:

26. [560]

    Section 96(2) of the Succession Act then provides for revocation of the approval of a release given by the Court under s 95 as follows:

27. [561]

    Section 96(2) thus encompasses two situations: the first (in sub-s (a)), where the approval of the release was obtained by fraud; the second (in sub-s (b)) where the release itself was obtained by fraud or undue influence.

28. [562]

    As to the first of those situations, this is akin to the situation where an application is made to set aside a judgment entered “irregularly, illegally or against good faith” (see, for example, UCPR r 36.15). In such a case what is required is actual (not equitable) fraud (see Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 (Clone); Wentworth v Rogers (No 5) (1986) 6 NSWLR 535, at 538 (per Kirby P, as his Honour then was (with whom Hope and Samuels JJA agreed) (Wentworth (No 5))). (See also what was said by Kirby P, with whom Samuels and McHugh JJA agreed, in Coles v Burke (1987) 10 NSWLR 429 at 437 (Coles v Burke).) One must focus on what was said or done (or knowingly omitted) such as to result in the judgment being entered (or, here, the approval of the release obtained) by reason of fraud. As to the second of those situations, one is focussing on conduct prior to the giving of the release, i.e., going to the circumstances in which the release itself was given.

29. [563]

    The authors of Wills, Probate and Administration Law in New South Wales (at [SA.96.10]) have observed that “fraud and undue influence [in the context of s 96(2) of the Succession Act] should have the same meaning as they do with respect to a will” (Stephen Janes et al, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters)). Reference is there made to Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136 (Becker), where Ipp JA (with whom Mason P and McColl JA agreed) distinguished in the probate context between fraud and undue influence (see at [63]-[66]), the former being concerned with misleading and deceptive conduct affecting testamentary disposition, the latter being concerned with coercion of the testator. In either case, however, it is clear that what is required is actual fraud or actual undue influence (not equitable fraud or circumstances giving rise to the presumption of undue influence). So, for example, Ipp JA referred in Becker at [66] to the examples of fraud affecting testamentary disposition (and capable of invalidating a will) given by Powell J in The Public Trustee v Mullane (unreported, Supreme Court of NSW, 12 June 1992 at 15), namely “wilfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator’s bounty”.

30. [564]

    In the present case, Mr Wilson was at pains to make clear that Robert does not allege actual fraud (on, in his words, the “red-blooded type of Derry v Peek fraud”). That suffices to dispose of Robert’s response to the reliance by Mr Chapple and Monique on the releases given under cl 3.1 of the Settlement Deed. In closing submissions Mr Wilson said that “[f]raud in the sense of dishonesty is not a necessary ingredient in challenging a decision for improper purpose”. That much may be accepted; but improper purpose (or equitable fraud) does not suffice to revoke a s 96(2) Succession Act approval of a release of rights.

31. [565]

    I note that a s 95 approval is one limited to a release of the right to make claims for family provision under Ch 3 of the Succession Act (i.e., such a release would not have been necessary for the settlement and release of the trust claims per se).

32. [566]

    In any event, there is nothing to establish that the release in the Settlement Deed was obtained by fraud or undue influence; nor that there was an improper purpose in entering into the Settlement Deed (and, as noted above, Mr Chapple sought and obtained judicial advice that he was justified in entering into the Settlement Deed and consenting to entry of the orders which it contemplated).

33. [567]

    Robert was, on his own evidence, aware of the existence of a trust (or at least the circumstances giving rise to a claim as to a trust) well before the Settlement Deed was entered into in 2015. His evidence is that he had conversations with his grandfather many years ago in relation to the alleged trust (although, as noted above, his evidence was inconsistent as to whether he remembered those in 2011 when he prepared his 2011 affidavit or not until 2021). For it to be true (as he was adamant in the witness box that was the case) that he received advice not to include the trust claims in the 2010 Proceeding, he must have known enough to raise the issue as to trusts with his then solicitor. And in any event, the reliance placed on the Duffy Letter makes clear that he was aware of the potential existence of a trust from September 1980. In other words, on his own evidence Robert was not misled as to the existence of a trust of the kind on which he now relies – that was his firm belief. Rather, what he was not aware of was that there was in existence a document (the 1962 Trust Deed) that might be relied upon by him as evidence to corroborate his assertion that there was a trust.

34. [568]

    Moreover, there is nothing to support the proposition that Patricia (or her Executor) knew of the 1962 Trust Deed at any time. The copy that was discovered in August 2024 was found in a box that had been removed from Allawa (where Ian Sanderson had lived) to Wangrawally, when the former property was sold. There is nothing to suggest that there was any deliberate non-disclosure of this document at the time the Settlement Deed was entered into (or at any other relevant time).

35. [569]

    As to the proposition that there was a failure of any trustee or successor trustee to keep the 1962 Trust Deed in a place of safekeeping and hence a failure to discharge the fiduciary duties of trustee in respect of the trust established by this deed, and that this is sufficient to “destabilise” the Settlement Deed, apart from the fact that equitable fraud does not suffice, this proposition conflates the position of successor trustees with that of the original trustee and assumes that executors of a deceased estate automatically assume the office of trustee in respect of trusts of which a deceased was trustee.

36. [570]

    The trustee of the trust established by the 1962 Trust Deed was Ian Sanderson. There is nothing to enable any finding to be made that there was a failure on his part to discharge his fiduciary duties. His executor and trustee under the 2002 Will was Patricia but that does not mean that she automatically assumed office as trustee of the trust established by the 1962 Trust Deed. Her executor and trustee, Mr Chapple, is in the same position.

37. [571]

    On the death of a sole trustee, the executor of the estate of that trustee does not automatically assume the office of trustee of said trust. This stems from the general principle that “the person who is to execute a trust or power must be a person who is in some way pointed out by the creator of the trust or power as a proper person to execute it”. Stated more recently by the authors of Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [15.75], “[n]o one can legally execute a trust unless nominated to do so by the settlor or testator or appointed so to do by or by direction of such settlor or testator, by Act of Parliament or by the court”. Rather, the trust will subsist in bare form until the appointment of a replacement trustee. There is an exception to this rule. Where there are no active duties to perform in relation to the trust, the deceased trustee’s executor may transfer the property to persons absolutely entitled.

38. [572]

    There is a difference in respect of the office of executor. When a sole executor dies, the executor of the deceased executor’s estate not only receives the unadministered estate previously held by the deceased executor, but also assumes the office of executor in respect of that estate.

39. [573]

    That said, the issue does not require further consideration because, as noted above, the fraud necessary to be established to set aside the s 95 Succession Act release is actual fraud; improper exercise or failure to exercise fiduciary duties would not suffice.

40. [574]

    Insofar as Mr Wilson submits that it was incumbent on the executor or trustee of a trust, or someone dealing with deceased estates, or a solicitor dealing with the property and affairs of people connected to these estates, to have investigated the 91 property titles or carried out the enquiries he had made, when there was a reference to a trust in the past (29/8/24; T 320.19), that is beside the point. There is no allegation of any breach of duty or negligence in any failure to make those enquiries in the past (the only pleaded allegation is of non-disclosure by Patricia of the contents of the Duffy Letter – when it is not clear that she had any such obligation – or of the contents of the conversations on which Robert relies (to which she was either not a party or, if a party, might well have contested had she been made aware of Robert’s account of those conversations when she was still alive)).

41. [575]

    As to the suggestion that there was a breach of fiduciary duty in the failure of Patricia (or any of her executor (Mr Chapple), Trevor or Monique) to make full disclosure in relation to the 1962 Trust Deed (which seems to be what Robert contends), this raises the difficulty, first, that there is no evidence to suggest that any of them knew of the 1962 Trust Deed before it was located by Hamish in the box of documents that had been removed from Allawa; and, second, that Robert did not point to any order for discovery in the 2010 Proceeding and Monique’s evidence is that there was no application for a disclosure order in the present proceedings.

42. [576]

    The 2010 Proceeding was heard in October 2012. From 26 March 2012, there was an operative practice note (SC Eq 11) which restricted disclosure in new and existing proceedings in that Equity Division until after service of affidavit evidence unless there were exceptional circumstances and required, on any application for disclosure, an affidavit explaining why it was required, the categories of documents sought, and the estimated cost of disclosure. While Robert, in cross-examination, made a passing reference to there being “plenty of discovery” (13/8/24; T 167.7), I cannot on the material before me to conclude that there was a breach of a direction or order in relation to disclosure (assuming one was made) in the 2010 Proceeding.

43. [577]

    There is no basis to suggest that any of the initial trustee (Ian Sanderson) or the subsequent executors is guilty of any wrongdoing so as to give rise to the principle that he or she should not profit from his or her own wrongdoing.

44. [578]

    I have concluded that the releases contained in the Settlement Deed do encompass the trust claims now made and provide an answer to those claims.

Are the claims time barred?

1. [579]

   In the event that the above conclusion be wrong, I turn next to the defences raising limitation issues and laches.

2. [580]

   Both the active defendants rely primarily in this context on laches as barring the trust claims. Monique says that Robert made a deliberate forensic decision not to raise the trust claims in the 2010 Proceeding concerning his grandfather’s estate (and indeed that was Robert’s evidence as noted above); and that this decision was to the prejudice of the defendants because key witnesses have died since then (namely, Patricia and Ian Stephenson) who would otherwise have been available to contest Robert’s evidence concerning the alleged trust and its termination, including as to the alleged conversations he had with them about the alleged trust.

3. [581]

   Monique submits that, on Robert’s own evidence, there has been inordinate delay between the time that he knew of the trust claim and the time that he instituted these proceedings; and that this delay was caused by the deliberate forensic decision not to raise the trust in the 2010 Proceeding. Mr Chapple similarly emphasises that Robert not only says that he knew about the claimed trust but that he obtained advice from a solicitor as to whether the issue ought be raised and made a deliberate decision not to do so.

4. [582]

   Robert points to s 47 of the Limitation Act 1969 (NSW) which provides in respect of a claim by a beneficiary under a trust, on a cause of action to recover trust property or property into which trust property has been traced, for a limitation period of 12 years from the date on which the plaintiff first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued.

5. [583]

   Robert says that his cause of action regarding the Duffy Letter and the 1962 Trust Deed is founded on a deed in respect of which a 12 year limitation period applying from the date on which the cause of action first accrues; and submits that the earliest such date was when he first became aware of the 1980 Duffy Letter (that being in 2018). Hence it is submitted that he is well within time to litigate his trust deed claim.

6. [584]

   As to the laches defence, Robert notes that this requires delay of such nature that the other parties will be prejudiced or placed in an unreasonable situation as a result of the delay (citing Fysh v Page (1956) 96 CLR 233; [1956] HCA 13); and that only prejudice suffered as a result of the delay is taken into account (citing Orr v Ford (1989) 167 CLR 316; [1989] HCA 4 (Orr v Ford)). Robert asserts that it cannot be said that there has been any loss of material evidence, so as to prejudice the defendants.

7. [585]

   Further, referring to his argument based on equitable fraud or improper purpose, Robert says that the seriousness of fraud or improper purpose cannot escape by the effluxion of time, citing Pepys MR (in Trevelyan v Charter (1835) 4 LJ (NS) Ch 209 at 214):

8. [586]

   Section 47 of the Limitation Act, which clearly applies in this case, provides:

9. [587]

   Laches is only available as a defence to equitable, not legal, claims (Sze Tu v Lowe (2014) 89 NSWLR 317, 390; [2014] NSWCA 462 (Sze Tu v Lowe) citing Orr v Ford, 340). Further, laches is confined to equitable claims which are not subject to any statutory bar either expressly or by analogy (Green v Gaul [2006] EWCA Civ 1124; [2007] 1 WLR 591 (Green v Gaul)). Approved in Sze Tu v Lowe, this principle has a strong English tradition (see In re Pauling’s Settlement Trusts, Younghusband and others v Coutts & Co [1964] Ch 393, 353, where Wilberforce LJ said that “[t]here being an express statutory provision, providing a period of limitation for the plaintiffs’ claims, there is no room for the equitable doctrine of laches”).

10. [588]

    Expressed more recently, in In re Loftus (dec’d) [2005] EWHC 406, Collins LJ said (at [161]) (approved on appeal in Green v Gaul ) that “[t]he doctrine of laches has no application to cases to which the Statutes of Limitation apply either expressly or by analogy”.

11. [589]

    Given the express application of s 47 of the Limitation Act to the trust claims in the Equity Proceeding, it is not necessary to consider its application by analogy. I simply note that in Sze Tu v Lowe at 390, where Gleeson JA ruled out the availability of laches to claims which are subject to a statutory bar either expressly or by analogy (cf the observation of the Victorian Court of Appeal in CSR Ltd v Amaca Pty Ltd (2016) 62 VR 359 at 436.)

12. [590]

    In my opinion, the limitation defence must fail, and the question of laches does not arise.

Res judicata/Anshun estoppel

1. [591]

   I turn then to the estoppel defences: i.e., res judicata or issue estoppel and Anshun estoppel (the latter taking its name from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (Anshun)). Monique’s submissions on those defences were broadly adopted by Mr Chapple, with Mr Chapple making the additional submission, in relation to the issue of estoppel, that he stands in Patricia’s shoes, insofar as necessary, to press the contention that an issue estoppel operates to preclude Robert’s claims. Mr Chapple says that, as party to the Equity Proceeding, he may primarily contend the application of an Anshun estoppel in defence of the estate.

2. [592]

   Monique submits that each of the elements of issue estoppel is established in this case.

3. [593]

   As to the identity of the issues here to be determined, Monique points out that, in the Equity Proceeding, Robert seeks declarations that part Barwon Vale and Gidgerygah are held on trust for him and Ben and that he claims that those properties have been held on trust since “at least 25 September 1980”.

4. [594]

   Monique points to the 2010 Proceeding (in which Robert unanimously claimed that those properties were held on trust for him and Ben, on the basis that Ian Sanderson had promised to bequeath Barwon Vale and Gidgerygah to them upon his death) and also pressed for family provision orders to be made from Ian Sanderson’s estate on the basis that the estate included those properties.

5. [595]

   In particular, Monique points to the findings made by Pembroke J as to the first and second questions identified by him. In Wilcox (No 1) at ([4]-[5]):

6. [596]

   It is noted that in Wilcox (No 2), on the quantification of the family provision claim (at [3], [20], [22], [23] and [34]), Pembroke J relevantly made findings to the effect that the rural properties formed part of the deceased’s estate and as to Robert’s asset position (which did not include beneficial title to any of the rural properties).

7. [597]

   Monique contends that the declarations now sought by Robert in the Equity Proceeding (i.e., that the properties known as part Barwon Vale and Gidgerygah are held on trust for him and Ben) are contrary to the precise matters already necessarily and directly decided by Pembroke J, namely that: first, the rural properties, including Barwon Vale and Gidgerygah, and the companies that held them, were held by Ian Sanderson beneficially; second, Ian Sanderson left his entire estate to Patricia including the properties known as Barwon Vale and Gidgerygah or the shares in the companies that held them (something he could only do if he beneficially held that property); and, third, that Robert did not beneficially own that property such that he was worthy of provision out of the estate.

8. [598]

   Monique points out that none of these findings was disturbed on appeal; rather, those findings formed the basis for allowing the appeal. For that reason, it is submitted that the matters which the prior judgment necessarily established as the legal foundation or justification of its conclusion are the subject of issue estoppels.

9. [599]

   As to finality, Monique notes that the three judgments in relation to the 2010 Proceeding are final judgments.

10. [600]

    As to the identity of the parties or their privies, Monique accepts that Trevor was not a party to the original proceedings. However, Monique says that Trevor and herself as his executor are privies by title to Patricia because Patricia devised her shares in I.F. Sanderson to Trevor under her will; and devisees and testators are privies.

11. [601]

    Thus it is submitted that an issue estoppel arises from the 2020 Proceeding because: (i) an issue that was determined was that the shares in the companies that owned Barwon Vale and Gidgerygah formed part of Ian Sanderson’s estate, indirectly; (ii) that determination was final; and (iii) there is commonality of parties, or their privies, between the proceedings.

12. [602]

    As to the contention that, if an issue estoppel does not arise, Robert is nevertheless precluded from raising the trust claim in the present proceeding.

13. [603]

    Monique points out that, on Robert’s own evidence, he knew of the existence of this trust before the 2010 Proceeding; prior to the 2010 Proceeding, he had conversations with Patricia concerning the trust, so that she was aware he knew of the trust; he took advice from the solicitor acting for him in the 2010 Proceeding as to whether he should raise the matter; and he made a deliberate decision not to raise this matter in the 2010 Proceeding, including in his own affidavit evidence. Monique submits that, assuming that to be so, Robert behaved unreasonably by not advancing a trust claim in the 2010 Proceeding because the matter was so connected to the subject matter of the 2010 Proceeding (which ultimately concerned the beneficial title to the properties known as Barwon Vale and Gidgerygah, where Robert was seeking a declaration that those properties were held on trust for him and his brother).

14. [604]

    Robert says that the type of trust claim raised by him in the 2010 Proceedings was in the nature of a remedial constructive trust claim or testamentary promise claim not based on any written trust document; and that the term “trust” in the 2010 Proceeding was in the context of a purely unwritten or non-express trust.

15. [605]

    Robert submits that the trust in the current Equity Proceeding is a very different type of trust, being an express trust. Robert emphasises that it was only recently that “the trust litigated in these 2021 proceedings ‘materialized’ into a written trust” (when the 1962 Trust Deed was found and provided to him).

16. [606]

    Robert accepts that, in the 2010 Proceeding, Pembroke J found there were no clear and unequivocal representations and that the “2010 trust claim” and “2010 testamentary promise claim”, and both failed on this point, but he argues that there is no similarity between the trust as dealt with by Pembroke J in the 2010 Proceeding and the trust on which his claim is based in the Equity Proceeding. Robert says that, in the current proceedings, he has not sought to claim again in relation to the 2010 Proceeding any remedial constructive trust claim or testamentary promise claim. It is submitted that issue estoppel and Anshun estoppel therefore do not apply. Robert maintains that the only commonality is the fact that the word “trust” is twice mentioned in different proceedings.

17. [607]

    Robert argues that the current express trust claim (based on a written trust deed) could not have been brought any earlier than 2018 when Robert first learned of the existence of an express trust that was based on a written document, via the 1980 Duffy Letter. Robert describes the 2018 discovery of the letter was a significant revelation and a “game changing” event. It is submitted that the type of trust claim “enlivened” by the 1980 Duffy Letter was very different from the earlier trust claim in the 2010 Proceeding.

18. [608]

    Robert emphasises that the 6 August 2024 disclosure of the 1962 Trust Deed as far as the trust to which it relates is concerned is of a completely different type of trust to the remedial constructive trust/testamentary promise claim made in the 2010 Proceeding.

19. [609]

    Issue estoppel has been explained (see Diplock LJ in Thoday v Thoday [1964] 1 All ER 341; [1964] 2 WLR 371 at pp 384-385) as a species of estoppel res judicatam, that being a generic term encompassing both “cause of action estoppel” (“that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties”) and “issue estoppel” (said to be an extension of the same rule of public policy). Diplock LJ there said that:

20. [610]

    Diplock LJ also cautioned that issue estoppel must not be confused with “fact estoppel”, saying that:

21. [611]

    See also his Lordship’s explanation in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 641-642 as to the distinction between an issue required to be determined as a necessary step in determining legal rights and duties resulting from the totality of the facts and a “mere dispute about facts divorced from their legal consequences” (the latter not being an issue for the purpose of issue estoppel). The test for identifying those facts the determination of which will give rise to an estoppel was explained by the Honourable Patrick Keane in Spencer, Bower and Handley: Res Judicata (6th ed, 2024, LexisNexis) (at 121) “as being whether the determination “was so fundamental that the decision cannot stand without it” (see also Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 at [106] per Handley JA (Champerslife)). The test is an objective one.

22. [612]

    In Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464; [1939] HCA 23, Dixon J, as his Honour then was, said at 531-532 that the estoppel covers only those matters which the prior judgment “necessarily established as the legal foundation or a justification of its conclusion”. To permit a party to re-litigate issues that were fundamental matters to an earlier judicial determination is not in the interests of the administration of justice and risks inconsistency of findings (see also Murphy v Abi-Saab (1995) 37 NSWLR 280 at 287-288 (per Gleeson CJ)).

23. [613]

    The question as to whether there is an issue estoppel is to be determined on the pleadings with reference to the judgment (see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507-509; [1988] HCA 21).

24. [614]

    What must here be established for an issue estoppel (or res judicata) to arise against Robert is that: the same question (fundamental to the conclusion in the earlier decision) has been decided; the earlier judicial decision said to create the estoppel was final; and the parties to that earlier judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised.

25. [615]

    As to the first requirement (identity of issue(s)), this includes matters which were necessary to decide and which were actually decided as the groundwork of the decision itself (even if not then directly the point at issue). The subject matter of the respective proceedings must be the same. It is not sufficient that the issue in the earlier proceeding could fall within the general terms of the issue in the subsequent proceedings. As Monique has noted, in Kuligowski v Metrobus (2004) 220 CLR 363 at 379; [2004] HCA 34 the High Court endorsed the statement by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276; [1968] HCA 34 that the issue to be determined (as distinct from the cause of action in which it arose) must be identical in the two proceedings.

26. [616]

    In the present case, while Robert argues that the same issue was not determined because the trust claim in this proceeding is based on an express trust rather than a remedial constructive trust or a testamentary promise, this begs the question that the critical issue to be determined in both sets of proceedings (the legal foundation or justification for the decision) is whether the properties (part Barwon Vale and Gidgerygah) were held on trust for Robert and Ben; and hence whether the registered proprietor of the properties held its interest in the properties beneficially at the relevant time. I do not see that the different basis for the trust claim that Robert now seeks to put alters that conclusion.

27. [617]

    Moreover, as Monique submits, the family provision claim in the 2010 Proceeding (as is also the case in the present Family Provision Proceeding) was predicated on the properties (or more accurately the shares in the companies holding the legal title to those properties) forming part of the deceased’s estate (which they could not have done had the properties, or the shares in the relevant companies, been held on trust for Robert and Ben). Conversely, the family provision claim was predicated on Robert’s financial circumstances not including as an asset a beneficial interest in the properties or shares.

28. [618]

    Thus, the same issue (i.e., were the properties, or shares in the companies holding legal title to the properties, held subject to a trust in favour of Robert and Ben) was necessary for the determination of the 2010 Proceeding albeit that the trust there contended for was a remedial constructive trust (based on an agreement or testamentary promise) rather than, as here, an express trust established by the 1962 Trust Deed or by the alleged trust conversations. The legal foundation or justification for the conclusion reached by Pembroke J (and not disturbed on appeal) that there was no trust (and hence the implicit determination that the shares in the relevant Sanderson Companies that owned the properties formed part of Ian Sanderson’s estate so as to be available to be considered in relation to the family provision claim) thus raises the same issue as that arising in the present proceedings (albeit on a different factual scenario). Thus, the first requirement for an issue estoppel is satisfied.

29. [619]

    As to the second requirement (finality of judgment), it is not here suggested that the relevant judicial determinations said to give rise to the estoppel (the respective decisions of Pembroke J in the 2010 Proceeding) were not final judgments in the requisite sense.

30. [620]

    As to the third requirement (identity of the parties or their privies), this is also satisfied in the present case: as to Mr Chapple because he was a party to the 2010 Proceeding; as to Monique, because there is privity in title as between as testator and devisee (privity arising because Patrica, who was a party to the 2010 Proceeding, devised her shares in I.F Sanderson to Trevor under her Will) and Monique is a party to the Equity Proceeding in her capacity as Trevor’s administrator. This case may therefore be distinguished from the High Court’s decision in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28. There, the Fair Work Ombudsman was acting pursuant to a statutory power, and was not enforcing entitlements, nor representing the legal interests of, the relevant workers. To the contrary in this case, Monique (while not a party to the 2010 Proceeding) is clearly seeking to represent the legal interests which derived first from Patrica’s estate, then to Trevor’s estate (in respect of which she is the executor).

31. [621]

    Thus, I am satisfied that an issue estoppel arises to bar the bringing by Robert of the trust claims in the Equity Proceeding. However, in the event that this conclusion be wrong, I consider the claimed Anshun estoppel.

32. [622]

    An Anshun estoppel (so named after the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45) arises where the subject matter of the subsequent proceeding is so connected to the subject matter of the original proceeding as to make it unreasonable for the claim not to have been brought in the original proceeding; or where the subsequent proceeding is an abuse of process (see Anshun at 602-603 per Gibbs CJ, Mason and Aickin JJ).

33. [623]

    The relevant principle is that articulated by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115 namely that:

34. [624]

    In Anshun, Gibbs CJ, Mason and Aickin JJ went on to acknowledge that there may be a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding and yet wish to litigate that issue in other proceedings (giving by way of example matters such as expense, importance of a particular issue and motives extraneous to the actual litigation). Hence the emphasis on the requirement that it be “so” unreasonable to refrain from raising the issue in the earlier proceeding (and see Allsop P, as his Honour then was, in Champerslife at [4]). Their Honours in Anshun also went on to refer to the possibility of conflicting judgments as an important factor to take into account in this regard.

35. [625]

    In Champerslife, Handley JA observed that the enquiry where the question is one of Anshun estoppel is not restricted to the pleadings and reasons for judgment and extends to include the reasonableness of the litigant’s conduct in the earlier proceedings or the existence of an abuse of process in the later.

36. [626]

    As Monique has noted, unlike issue estoppel, there is no requirement for identity of parties or their privies where the question is one of Anshun estoppel, reference being made by Monique to the observation by McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, at [83] that although there may be no question of oppression and unfairness where the parties in the subsequent proceeding were not parties to the earlier action, the new proceeding may threaten the integrity of the administration of justice if it raises the prospect of conflicting judgments. Monique also points out that the application of the doctrine does not depend on mutuality.

37. [627]

    Here, the real issue is as to whether Robert has behaved “so” unreasonably by not bringing his present trust claim in the 2010 Proceeding (i.e., as Robert describes it, his express trust claim) because this was so connected to the subject matter of the 2010 Proceeding (where he sought declaratory relief based on a remedial constructive trust claim in respect of the same properties the subject of the present claim) that he ought be estopped from now advancing such a claim.

38. [628]

    Of course, Robert could not reasonably have brought a claim in 2010 relying on a trust document of which he was not then aware. However, the present claim (as pleaded and up until the discovery of the 1962 Trust Deed) was not one based on that particular document. Rather, it was based on the reference to a trust in the Duffy Letter and the conversations on which Robert relies. Robert argues that he could not have brought the present express trust claim (which he now says is based on a written trust deed) any earlier than 2018 because it was only then that he saw the Duffy Letter and learnt of the existence of an express trust. However, Robert’s latest evidence (i.e., that in his 2021 Affidavit) is that he knew of the existence of a trust (since he deposes to conversations in which there is reference to the properties being held in a trust and since he recalled enough of those conversations to raise it with his then solicitor, Mr Macauley, at that stage) at the time of the 2010 Proceeding.

39. [629]

    On Robert’s own evidence he made a deliberate decision not to raise this in his 2011 Affidavit (and, by extension, one would infer that the decision was made not to seek to amend his pleading to encompass such a claim). The fact that this was a decision made on acceptance of his solicitor’s advice (whether or not that advice be right or wrong) is a factor to take into account in considering the question of reasonableness but does not necessarily mean that an Anshun estoppel would not arise.

40. [630]

    In my opinion, the fact that Robert believed that there was a trust in existence and chose not to raise that issue in the 2010 Proceeding (and raised his family provision claim expressly on the basis that the estate included a beneficial interest in those assets) leads to the conclusion that it was unreasonable for Robert not to have raised the issue of an express trust back in 2010. The suggestion that the trust litigated in these proceedings “materialised” into a written trust when the 1962 Trust Deed was discovered highlights that the provision of the deed did not give rise to a new or different trust claim; it simply assisted in the proof of that claim.

41. [631]

    I have already indicated why I reject the proposition that the discovery of the 1962 Trust Deed was a “game changer”. Such a proposition would have had greater force had the document discovered been a trust deed that expressly covered the claimed properties and shares. But the 1962 Trust Deed does not. It simply provides support for the contention that Robert has made (based on evidence that could have been put forward in the 2010 Proceeding) as to the properties (and shares) being held on trust. I have concluded that an Anshun estoppel does arise in circumstances where Robert made a deliberate decision not to raise the allegation of an express trust in the 2010 Proceeding even though he was not aware until 2016 of the Duffy Letter and not aware until August 2024 of the 1962 Trust Deed. While it might be said (though this was not expressly argued) that it is not unreasonable not to make a claim based on legal advice not to do so, that would not adequately take into account in my opinion the fact that on Robert’s evidence there was a forensic decision which was made (and ordinarily parties are bound by the forensic decisions taken in the conduct of their case).

42. [632]

    The unreasonableness of not asserting an express trust based on the conversations on which Robert now relies back in 2010 means that the defendants have again been vexed by proceedings in which beneficial ownership of the very same assets is again in dispute (simply argued on a different basis). (It may also be noted in this context that Robert’s claim in the family provision proceeding brought in relation to his mother’s estate was in effect predicated, and ultimately settled, on the basis that his mother’s estate included the very properties that he now contends have been held on trust for him at all times since at least 1980.)

Trust claims

1. [633]

   The conclusions reached on the release and estoppel defences are sufficient to dispose of the Equity Proceeding. However, lest any of those conclusions be wrong, I now address the merits of the trust claims.

2. [634]

   As to the trust claims, Robert submits that “the 1962 Trust Deed standing alone is a different proposition to the 1962 Trust Deed connecting to its trust fund or trust estate”. By this submission (which was based, in part at least, on the additional material that was not admitted in evidence), Robert argues that the 1962 Trust Deed has an “obvious connection” to the properties in the registered proprietorship of the three Sanderson companies (Sanderson Estates, Gidgerygah and I.F. Sanderson) and is not simply a £10 trust.

3. [635]

   To my mind that rather begs the question here in issue. Robert’s submission that all of the properties and assets of Ian Sanderson were held on trust for him (and his brother), to the extent that the trust he here contends for is that which was established by the 1962 Trust Deed, requires that he establish on the balance of probabilities that those properties and assets at some time became impressed by the trust established under that trust deed. The fact that the 1962 Trust Deed contemplated that the trust fund might be enlarged beyond the initial sum settled on trust (the £10) (a hardly startling proposition) does not mean that all of Ian Sanderson’s real property and assets somehow automatically became impressed with that trust. This is ultimately where the trust claim (considered on its merits) must fail (as I explain below).

4. [636]

   There is simply no evidence that when the Sanderson Companies were incorporated Ian Sanderson held his shares in the companies on trust (under the terms of the 1962 Trust Deed or otherwise) nor that Ian Sanderson ever subsequently declared that his shares in the respective Sanderson Companies which held the legal title to the properties in question were to be held on the terms of or pursuant to the trust established by the 1962 Trust Deed (or any other trust).

5. [637]

   Robert’s contention to the contrary is largely based on inferences that it is submitted should be drawn from what are said to have been estate planning practices in the 1960s and financial records of Sanderson Estates (those that were in evidence in this Court) which it is said tend to prove that Sanderson Estates was a trust company. (He also asserts that the other Sanderson Companies were also trust companies.) I have not reached the necessary state of satisfaction as to those propositions.

6. [638]

   Insofar as the principal evidence put forward by Robert in support of the trust claims is his 2021 Affidavit (attesting to various conversations he claimed to have had with his grandfather, Mr Stephenson (his grandfather’s accountant) and Patricia in the 1980s to 2000 in which he claims he was told about the alleged trust and that he and Ben were the beneficiaries), the defendants submit that this evidence cannot be accepted as Robert lacked any credibility as a witness. I agree.

7. [639]

   Reference is made to the well-known statement in Watson v Foxman at 319 per McLelland CJ in Eq (as his Honour then was) as to the fallibility of human memory (the degree of which is there said ordinarily to increase with the passage of time, particularly where litigious disputes intervene). I interpose to note that this is an apt observation in the present case where Robert has clearly been fixated for some time on his claims to the Walgett Properties. Monique also points to judicial recognition of the need for caution when weighing evidence of alleged conversations with deceased persons (referring to Sarant v Sarant [2020] NSWSC 1686 per Hallen J at [92]-[98], his Honour there citing, among other authorities, Plunkett v Bull (1915) 19 CLR 544 at 548-549 per Isaacs J; [1915] HCA 14).

8. [640]

   I have referred above to the submissions made by the defendants as to the lack of credibility of Robert’s evidence as to past conversations. As to the contemporaneous records, the defendants submit that these are inconsistent with Robert’s case.

9. [641]

   In that regard, reference is made to the documents recording the incorporation of the relevant Sanderson Companies (Sanderson Estates and I.F. Sanderson), the acquisition by those companies of the relevant properties for stated consideration, and the annual returns for those companies which are in evidence (prepared by Mr Stephenson and certified variously by Ian Sanderson and by Mr Stephenson) which disclose that the companies did not act as trustees and that the company shares were held beneficially (see above).

10. [642]

    Reference is also made to the respective wills of Ian Sanderson (in 1987 and 2002), which made no reference to the alleged trust and treated his property as his own not subject to any trust, and Patricia (in 2012 and 2014), which bequeathed her shares in Sanderson Estates and I.F. Sanderson as her own.

11. [643]

    The defendants argue that the Duffy Letter provides no support for the alleged trust(s). As to the position of the Gidgerygah property, it is noted that the letter refers only to Patricia’s “interests” in Sanderson Estates being “covered through trusts” (and makes no mention of I.F. Sanderson, which was the registered owner of Gidgerygah). As to the position of the part Barwon Vale property, Monique points to Mr Duffy’s evidence that his knowledge of the matters contained in the letter came from a conversation he had with Mr Stephenson (consistent with the terms of the letter itself, which refer to such a conversation), not based upon any personal knowledge of Ian Sanderson’s affairs. Monique emphasises the potential inaccuracy of such hearsay evidence and says that the letter may simply not accurately record what the circumstances were in 1980.

12. [644]

    Further, the defendants submit that the letter itself is inconsistent with the pleaded trust in relation to the Barwon Vale property in two respects: first, it is that the letter refers to Ian Sanderson being the trustee of the trust (whereas the pleading names Sanderson Estates as the trustee); and, second, that the letter refers to Patricia’s “interests in Sanderson Estates” (whereas the pleading alleges that the property was held on trust). Patricia, of course, held shares in Sanderson Estates in her own right at the time of the letter.

13. [645]

    Monique argues that the delay in bringing this claim until Mr Stephenson had died means that it is speculation as to what the true position was in 1980, postulating that Mr Duffy may have simply misunderstood what Mr Stephenson told him or the possibility that in some earlier will Ian Sanderson’s interest in the B class share in Sanderson Estates was to be the subject of a testamentary trust in favour of Patricia for income only and that the circumstances changed when Ian Sanderson made his 1987 Will and later 2002 Will. Monique maintains that the contemporaneous records demonstrate that no trust ever existed over the part of Barwon Vale held by Sanderson Estates and that, if it ever did, it had ceased to exist long before Ian Sanderson made his 2002 Will and died in January 2010.

14. [646]

    The defendants argue that the 1962 Trust Deed provides no support for the alleged trust, emphasising that there is no contemporaneous evidence that either of the properties (or any of the shares in the Sanderson Companies) was ever transferred into the trust. Further, it is noted that, even if the properties were transferred into the trust, cl 1(ii) of the 1962 Trust Deed allows the Trustees (i.e., Ian Sanderson) at their absolute discretion to pay over or transfer to the beneficiary (Patricia), after she attains the age of 30 years, “the whole or any part of the Trust Fund”.

15. [647]

    It is noted that Mr Duffy gave evidence during cross-examination that he telephoned Mr Stephenson’s office in 2010 and was informed that all of the trusts concerning Ian Sanderson’s estates had been wound up long ago. Monique suggests that it may be that what was done was that the capital of the trust was distributed to Patricia during her life (though Monique accepts that this is speculation). What Monique submits is certain, however, is that whatever was the case in 1980, no trust existed when Ian Sanderson died and bequeathed his estate to Patricia.

16. [648]

    Mr Chapple similarly says that Robert’s evidence does not establish that the trust he claims (or any other trust that supports the relief he seeks) ever existed or, if it did, subsisted or still subsists. Further, it is submitted that the evidence does not establish that any of the property to which the relief is directed, was held in any such trust. Mr Chapple attaches significance to the fact that all of the relevant property, including shares in companies that owned Barwon Vale and Gidgerygah, was owned beneficially by Ian and Patricia at the relevant times and that each bequeathed his or her interest in his or her respective will.

17. [649]

    As adverted to earlier, the difficulty that Robert’s pleaded trust claims face is the lack of objective evidence as to the existence of the trusts claimed: namely, a trust (of which Sanderson Estates is the trustee) in respect of the part Barwon Vale property; and a trust (of which I.F. Sanderson (now deregistered) was, and Monique, as Trevor’s executor, now is the trustee) in respect of Gidgerygah; and, further or in the alternative, a trust (of which Ian Sanderson was the trustee) in respect of Ian Sanderson’s shares in Sanderson Estates.

18. [650]

    The existence of such trusts gains no support from the alleged conversations on which Robert relies, in that those conversations record little more than generalised promises that “all this” would be Robert and Ben’s one day (promises that were rejected by Pembroke J in the 2010 Proceeding as being not clear and unequivocal and hence not supporting the then claimed agreement or proprietary estoppel case) or statements (not contained in Robert’s 2011 affidavit and hence not able to be tested at a time when Patricia or Mr Stephenson was alive) that the properties were “in a trust” or “in a trust to [Robert and Ben]”. At all relevant times, the properties were in the ownership of the respective Sanderson Companies, whose annual returns did not disclose that the companies were trustees (and the shares in which were recorded as being owned beneficially by the respective shareholders).

19. [651]

    I have not lost sight of the evidence relied upon by Robert from each of Douglas, Stuart and Tracy (or of the reliance placed by him on the material obtained on subpoena from Mr Oliveri).

20. [652]

    As to that evidence, I have already indicated my conclusion that Douglas’ recollection of the conversation overheard by him between his father and Ian Sanderson (based on unspecific references to tax and trust issues and his observation that Ian Sanderson had a piece of paper in his hand – that Douglas did not see) does not provide support for Robert’s claim. Although Douglas was adamant that what was being referred to was not a testamentary trust, there is nothing in his recollection of the discussion that precludes that possibility. Rather, Douglas seems to have formed a view based on his own understanding of trust arrangements that an inter vivos trust must have been what was being discussed.

21. [653]

    As to Stuart and Tracy’s respective recollections of the conversations with Patricia (i.e., that she said that her father had left the properties in trust for the two boys), again this is a generalised statement made many years ago and would be more naturally understood as referring to a testamentary disposition. In any event, it was made in the context of trying to garner sympathy or support for Robert Snr (and hence Patricia)’s position in relation to the dispute between the Wilcox brothers. Again, it is not consistent with the properties already being the subject of a trust and the lack of precision in the statements attributed to Patricia leaves me unable to form the necessary state of satisfaction as to the existence of a trust (or that Patricia was acknowledging such a trust).

22. [654]

    Similarly, the evidence in Ex K goes no further in my opinion than to support the conclusion that Ben was asserting to his solicitor that Mr Duffy had told him there was a trust. There is nothing to indicate that, if this was said, it was anything more than Mr Duffy’s recollection of what Mr Stephenson had told him (as conveyed in the Duffy Letter); and again this does not go far enough.

23. [655]

    The argument now put by Robert (following the discovery of the 1962 Trust Deed) appears to be that Ian Sanderson held the properties (or perhaps caused the properties to be acquired by companies of which he was director) and his shares in the respective companies on trust pursuant to the terms of that trust deed; and that Patricia, as his executor, and Trevor, as her executor, became bound to deal with the properties or the shares in accordance with that trust; and hence that any disposition of the properties or shares otherwise than for the benefit of Robert and Ben, as equal beneficiaries absolutely entitled under that trust amounts to an improper exercise of fiduciary duty, such that the ultimate recipients of the properties and/or shares holds those assets on the terms of the 1962 Trust Deed. That involves a number of propositions none of which has been established on the balance of probabilities.

24. [656]

    First, there is the difficulty that there is no evidence of any declaration in writing by Ian Sanderson of a trust in respect of the properties themselves, nor of any declaration (oral or otherwise) of trust in respect of the shares in the Sanderson Companies. The properties were acquired by the respective companies without evidence of any reference to the holding of the properties by those companies on trust. Ian Sanderson, as director and controlling shareholder of the companies, might have taken steps to cause the companies to hold those properties in trust but there is no evidence that he did so. (The suggestion that there was a corporate/trust structure directed towards estate planning for the purposes of avoiding or minimising death duties applicable in the 1960s is pure speculation.)

25. [657]

    Second, the statement in the Duffy Letter that Patricia’s interests in Sanderson Estates were “covered through trusts” (being Mr Duffy’s understanding of what he was told by Mr Stephenson) makes no sense. Patricia’s “interests” in that company derived from her shares in the company, which are not recorded as being held by her beneficially or as being subject to any trust. In any event, it is based not on any knowledge or familiarity on Mr Duffy’s part at the time as to the Sanderson family arrangements but on what he understood from Mr Stephenson (and I have already noted my conclusion that this does not suffice to persuade me of the existence of a trust over the properties and shares as now claimed)

26. [658]

    Third, there is no suggestion (other than in conversations not contained in Robert’s 2011 Affidavit and hence not able to be tested with Patricia while she was alive) that Patricia was aware of the 1962 Trust Deed. The suggestion that she improperly exercised some fiduciary duty to ensure the safe-keeping of that document or to act in accordance with it is untenable. As noted above, an executor does not automatically become trustee of trusts of which the deceased was trustee and there is no reason to think that her administration of the assets of her father’s estate was improper or in breach of her duty as executor. The same comment may be made, a fortiori, as to Mr Chapple’s administration of Patricia’s will. Robert’s trust claims become even more tenuous to the extent that they seem to assert some improper conduct on the part of Trevor in taking a transfer under Patricia’s will of the shares in I.F. Sanderson and then transferring Gidgerygah from that company to his ownership.

27. [659]

    Mr Wilson emphasises the potential future rights under the “ongoing device” of a trust (29/8/24; T 311.11) but that assumes that the properties in question ever became impressed with a trust in favour of Robert (whether the trust established under the 1962 Trust Deed or otherwise). The speculative nature of Robert’s submissions as to the trust was indicated by Mr Wilson’s reference to the mystery as to the “connectivity” of the assets of the Sanderson Companies to the trust (29/8/24; T 312.9). In other words, there is no evidence that the assets of the Sanderson Companies were ever held in trust, simply the hope that some such connection might have been able to be unearthed.

28. [660]

    Therefore, had it arisen for determination (i.e., had the trust claims not been released or otherwise barred by the principle of res judicata or Anshun estoppel), I would have concluded that the trust claims fail on their merits because it has not been established on the balance of probabilities that the relevant properties or shares in the relevant companies ever became part of the trust fund the subject of the 1962 Trust Deed; nor that they were ever otherwise impressed with a trust in favour of Robert and Ben.

29. [661]

    I note for completeness that at the conclusion of the oral closing submissions, Ben (without objection by any of the active parties or of the solicitor appearing for the receivers of Sanderson Estates) made a brief oral submission as to his position to the following effect: first, that Robert had not sought leave to sue Ben, a bankrupt; and second, that “there simply [is] not enough evidence to run [Robert’s claim]” (see 29/8/24; T 344.46-T 345.22). I considered it simply as a submission but thought it appropriate to permit Ben (who had been present in Court throughout the hearing) to inform me of his position so that he was satisfied that he had been heard in the matter. As it is, since no leave was sought to proceed against him as an undischarged bankrupt, no orders could properly have been made in relation to his shares in Sanderson Estates (a fatal difficulty for the declaration that Robert sought in relation to those shares).

30. [662]

    Therefore, as noted earlier, insofar as the claim is made as against Ben, it must be dismissed.

Setting aside of judgments for fraud

1. [663]

   I deal separately with the contention by Robert that the judgments or orders in the 2010 Proceeding and subsequent 2014 Court of Appeal proceeding should be set aside for lack of good faith or fraud (see [24]-[26] of the Further Amended Statement of Claim).

2. [664]

   This contention is put on the basis of the allegation that Patricia, in the 2010 Proceeding; failed to disclose in her affidavit evidence the existence of the alleged trusts; should have disclosed, but failed to disclose, the Duffy Letter; and should have disclosed, but failed to disclose, the conversations with Robert that he attests to in his 2021 Affidavit in the present proceedings at [45] (and that are attested to by Stuart and Tracy).

3. [665]

   Robert asserts that these matters amount to “a lack of good faith and or fraud for the purposes of Part 36.15 of the UCPR”, and that this justifies the setting aside of the judgments. In his particulars, Robert contends that Patricia was obliged to disclose these matters pursuant to Patricia’s discovery obligations “when served with a list of documents [sic] or Notice to Produce”. (Monique says that no such discovery obligations have been identified.)

4. [666]

   Again, Mr Chapple adopts Monique’s submissions. Monique notes that UCPR r 36.15 is to be read in light of the principle of finality (referring to Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [14]-[17] (French CJ, Crennan, Kiefel, Bell JJ); [42] (Gageler J (as the Chief Justice then was)) (Achurch). In particular, emphasis is placed on what was said at [16] in Achurch. Reference is also made in this context to Coles v Burke, per Kirby P, with whom Samuels and McHugh JJA agreed, at 437; and to Wentworth (No 5), at 538-539 per Kirby P, with whom Hope and Samuels JJA agreed).

5. [667]

   Monique submits that Robert’s application to set aside the judgments fails for the following reasons.

6. [668]

   First, that to set aside the judgment for fraud, Robert must show that he and the Court were deceived; and that he can only do this by showing that he has discovered the truth since the trial. Monique notes that Robert claims to have known about the trust from conversations he had with his grandfather, mother and his grandfather’s accountant well before the 2010 Proceeding. Hence it is argued that Robert was not deceived; rather, on his own evidence, he knew of the alleged trust but made a deliberate forensic decision not to raise it, on advice. It is noted that part of the alleged fraud is the failure by Patricia to depose to conversations Robert claimed he had with her about the trust; and Robert’s own evidence is that his reaction to being shown the Duffy Letter was that “just as I thought, the property is in a trust”.

7. [669]

   Second, Monique says that neither the Duffy Letter nor the 1962 Trust Deed is material. Monique argues that they make no difference to the claim Robert now seeks to bring (let alone the “promise to bequeath” claim that he was advancing in the 2010 Proceeding); rather, these are merely more pieces of indirect evidence of no more importance than Robert’s alleged conversations with his grandfather, his grandfather’s accountant (Ian Stephenson) and his mother (Patricia). Monique accepts that, if Robert had decided to plead the trust claim in the 2010 Proceeding, these documents might have been the subject of discovery orders and disclosed but reiterates that Robert made a deliberate decision not to raise these issues in that proceeding. Monique says that Robert’s change of heart is not enough to set aside the judgments for fraud, again emphasising the principle of finality.

8. [670]

   Third, that Robert has not identified any discovery order or notice to produce which would have required the production of the Duffy Letter. Monique notes that on Robert’s own evidence that letter was found in the lining of a desk drawer in Barwon Vale, and that Barwon Vale had not been occupied by Patricia since early 1993. Monique submits that even if it was the subject of a discovery order it may not have been uncovered by reasonable searches.

9. [671]

   Fourth, that to the extent the application relies upon the failure of Patricia to address the historical documents in her affidavits in the 2010 Proceeding, that is far from sufficient. Monique argues that even if these matters were somehow relevant, the fact that Patricia simply did not raise them is not a matter of fraud or bad faith. Monique notes that even perjury is not ordinarily enough to justify the setting aside of judgments; and points out that Robert gave evidence in cross-examination in these proceedings that his mother did raise these matters in cross-examination, and that he himself raised them on appeal.

10. [672]

    Finally, insofar as Robert seeks to set aside the Court of Appeal’s judgment, Monique says that there is a question as to whether a judge sitting at first instance has the power to set aside a judgment of the Court of Appeal. In any event, Monique says that this is a red herring as all relevant factual findings were made by Pembroke J. Mr Chapple similarly raises a doubt as to the power of a judge at first instance to set aside a judgment of the Court of Appeal.

11. [673]

    First, as to the power of a judge sitting at first instance to set aside a Court of Appeal judgment, ordinarily there would be no question that a judge at first instance is bound by judgments of the appellate court. However, where the issue is as to whether the appellate judgment in question is one which was procured by fraud, then it is necessary to consider the source of the historical power of a court to set aside its own perfected judgment if procured by fraud.

12. [674]

    Historically, the source of that power was a bill to set aside a decree for fraud in Chancery. A concomitant method for reviewing perfected decisions was via a rehearing on a bill of review, which operated to reverse, alter or explain an enrolled decree. On the passage of the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66), this general bill of review was regarded as impracticable in the context of the then newly-defined appellate jurisdiction, particularly given the risk that claimants might deploy the Chancery petition to evade the new rules of appeal (see In re St Nazaire Co (1879) 12 Ch D 88). This was confirmed by the passing of the Equity Act 1880 (NSW), which provided for appeals to the Full Court to be by way of rehearing, with the right of the Full Court to give leave for the adducing of new evidence with leave. Sections 75A and 101 of the Supreme Court Act 1970 (NSW) succeed those provisions in the Equity Act 1880 (NSW).

13. [675]

    However, the bill presented to Chancery to set aside judgments procured by fraud remained because it was a “narrowly defined exception and was therefore tolerable” (see Clone at [56] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) citing D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, at [34]).

14. [676]

    By reason of s 9 of the New South Wales Act 1823 (4 Geo IV c 96), which declared that the Supreme Court of New South Wales “shall be courts [sic] of equity… and shall have power and authority… as the Lord High Chancellor of Great Britain”, the power to set aside a decree for fraud formed part of equitable powers of this Court (see Clone, at [52] in relation to the analogous position in South Australia; see also M Leeming, ‘Fusion-Fission-Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824-1972” in J Goldberg et al (eds), Equity and Law: Fusion and Fission (Cambridge University Press, 2019) 118-143). This state of affairs was maintained by the continuance provision in s 22 of the Supreme Court Act 1970 (NSW).

15. [677]

    Where a party contends that a judgment was procured by fraud and should therefore be set aside, it has been said that the action should be brought by fresh proceedings (see McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45; Spies v Commonwealth Bank (1991) 24 NSWLR 691 (Spies); Clone at [32]). This is said to be because “[s]uch an application is not strictly an appeal but an independent proceeding” (see Spies, 699 citing Nicholls v Carpenter [1974] 1 NSWLR 369, at 374-375). This is important in understanding the scope of the power, and with whom it rests, it being said that it is “independent of the appeal and equitable in origin and nature” (Wentworth (No 5), 538 (Kirby P)). This should be contrasted with an application to set aside a judgment on the ground that fresh evidence has been obtained, in which case “it appears… highly desirable that the Court of Appeal alone should have jurisdiction” (although this is more properly described as an appeal by way of rehearing) (Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78, at [214] (Ipp AJA)).

16. [678]

    This power was given recent consideration in Foundas v Arambatzis (2022) 109 NSWLR 73; [2022] NSWCA 113 (Foundas), where (at [30]) White JA (with whom Bell CJ and Basten AJA agreed) observed:

17. [679]

    Foundas thus affirmed the equitable power to set aside judgments of the Court of Appeal which have been procured by fraud (and the fact that such an application is not an appeal). It thus rests with this Court (the Supreme Court) in its equitable jurisdiction to do so, though not necessarily to the exclusion of the Court of Appeal (to the extent that the power under r 36.15 of the UCPR could be invoked in the Court of Appeal– the question adverted to but not dealt with in Foundas).

18. [680]

    Pausing here, I note that Aickin J in Gamser v Nominal Defendant (1977) 136 CLR 145, at 154; [1977] HCA 7 said that “it is difficult to visualise how a judgment of an appellate court could be obtained by fraud, other than in circumstances in which the original judgment which the appellate court had upheld had itself been obtained by fraud”.

19. [681]

    Thus, a judge sitting at first instance has power as a matter of equitable jurisdiction to set aside orders made by the Court of Appeal where it is established that they have been procured by fraud (and hence I do not consider the doubt raised by the defendants in this regard to be well-founded).

20. [682]

    Relevantly, however, what is required is that it be found that there was actual fraud (not fraud in the equitable sense as Robert here contends). In Clone, it was said that:

21. [683]

    That is sufficient to dispose of the claim to set aside the judgments or orders made in the 2010 Proceeding and appeal therefrom, since Robert through his solicitor has expressly disavowed an allegation of actual fraud. Suffice it simply to say that on the evidence before me no finding of actual fraud could possibly be made (even if there had been some failure to comply with disclosure or discovery obligations or duties as an executor).

Family Provision Proceeding

1. [684]

   I now turn to the Family Provision Proceeding in which Robert makes application pursuant to s 59 of the Succession Act for provision out of Trevor’s estate. As is well known, s 59 of the Succession Act provides as follows:

2. [685]

   Robert claims to be eligible to make such an application on the basis that he falls within the definition of “eligible person” in s 57(1)(e) of the Succession Act, which provides that.

3. [686]

   Pursuant to s 59(b), set out above, as Robert claims to be an eligible person pursuant to s 57(1)(e), then he must also establish that there are “factors warranting” the making of the application before consideration is given to whether proper and adequate provision for him has not been made under Trevor’s will and, if that be the case, what provision (if any) should be made at the time of hearing.

4. [687]

   In his 4 September 2023 affidavit, Robert defines as the “Family Estate” the various properties in Walgett the subject of the Equity Proceeding (including Allawa, Barwon Vale, Gidgerygah and Wangrawally) (see at [9]). This has the result that it is not always clear on which property Robert says he was living at various times. On occasion he draws a distinction between living with his mother and Trevor (see for example at [27], [29]-[32] and [37]) and living with his grandfather (see [15]-[16]). At [36], he simply refers to the Family Estate. The explanation given for this was that it was a family estate and he lived and worked “interchangeably” between where his mother and his grandfather lived (see [28], and he treated it as a “single family and household, even after my parents separated and my mother lived with the deceased [Trevor]”). This is of some significance when it comes to assessing Robert’s eligibility to make a family provision claim – as I consider in due course.

5. [688]

   Whether Robert was at any time dependent or partially dependent on Trevor and a member of Trevor’s household is a question of fact (see Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [68]-[72] per Payne JA (Macfarlan JA agreeing)). As to the meaning of “household”, in Russell v NSW Trustee and Guardian [2013] NSWSC 370, at [35]-[51] (Russell), Hallen J observed that “[i]t is the characteristics and dimension of the domestic relationship that make it a household” and that the concept connotes “a degree of continuity and permanency of mutual living arrangements”. His Honour said that “[r]egular visiting, when this is not accompanied by regular overnight stay, is not sufficient”.

6. [689]

   Robert did not address in his submissions the first of those requirements, though in his affidavit evidence (referred to below) he asserts that when he stayed at Wangrawally he was dependent on Trevor for food and board. As to the second of those requirements, Robert says that although his place of abode “fluctuated” over the years, he was “sufficiently present and grounded” in Trevor’s household to be considered a member of his household and one for whom Trevor was to provide in his will.

7. [690]

   Monique submits that Robert was never wholly or partly dependent on Trevor and did not live with Trevor as a member of the household. Monique says that any time Robert spent at Wangrawally (the property where Trevor and Patricia lived) was to visit his mother and submits that this does not satisfy the conditions of eligibility under s 57(1)(e) of the Succession Act.

8. [691]

   As noted in the chronology set out earlier in these reasons, the evidence was that Trevor and Patricia began a relationship in about 1993 and that they started living together in about late 1996 or 1997. Robert’s evidence is that he worked full time on the “Properties” between 1986 and 1993 ([27] of his 2021 Affidavit). That period was before Trevor was living with Patricia at Wangrawally.

9. [692]

   In Robert’s 4 September 2023 affidavit filed in the Family Provision Proceeding (2023 affidavit) (as I have noted earlier), Robert deposed that from 1993 until 2006 he would return to the “Family Estate” and live with Patricia (and later Trevor) and perform work on the “property” ([27]), his evidence being that during this time when he returned to the Family Estate he would live mostly with his mother (and later Trevor) a number of times each year for maintenance work and to help with the sheep shearing once a year ([27]). He asserted at [27] that he depended on his mother and Trevor when he “visited the Family Farm” to provide room and board, including food, to enable him to continue his farming career.

10. [693]

    At [29] of his 2023 affidavit, Robert deposed that on about 2 February 1998 he suffered appendicitis and returned to the Family Estate to live with his mother and Trevor for a “couple of months”; and he asserts that he depended on Trevor and his mother at this time to provide room and board including food, fuel and domestic support. He then deposes that after “a few months” he moved out of his mother’s house to live with his grandfather on the Family Estate.

11. [694]

    Robert’s evidence is that from later in 1998 he worked as a contractor on Cubbie Station in Queensland (about two hours’ drive from the Family Estate) for about a year and while working there he returned to the Family Estate on weekends to live with Trevor and his mother ([30]). He deposes at [31] of that affidavit that in about 1999 to 2001 he worked in the Northern Territory to work on a mine and that while he worked in the Northern Territory he returned to the Family Estate two or three times to live with Trevor and his mother.

12. [695]

    I note that in Robert’s 2021 Affidavit he deposed (consistently with his 2023 affidavit) that in or around 2000 he was in the Northern Territory (see [45] of his 2021 Affidavit), though in his 2021 Affidavit he does not depose to having returned to live with his mother and Trevor in that period.

13. [696]

    In his 2023 affidavit Robert deposes that he moved to Sydney for work in 2001 but continued to live regularly with Trevor and work on the Family Estate until late 2006 when his grandfather went into a nursing home ([32]).

14. [697]

    In his 2021 Affidavit, Robert refers to a conversation in around July 2001 when he was shearing at Wangrawally with his grandfather ([46]); and he deposes that in December 2001 he returned from the Northern Territory and lived at Allawa (not, I note, Wangrawally) with his grandfather for “well over a year” ([47]). In cross-examination he ultimately suggested that this should be corrected to that he “came and went”.

15. [698]

    In his 2023 affidavit, Robert deposes that from late 2006 until his grandfather died in early 2010 he continued to return to the Family Estate at key times each year for extended periods of time to perform work ([36]) but he does not make clear on which property he was living at those times.

16. [699]

    As noted earlier, in his 2023 affidavit, Robert deposes that he lived and worked “interchangeably” between where his mother and his grandfather lived (see [28]) and treated it as a single family and household.

17. [700]

    As to the assertion by Robert that he was wholly or partly dependent on Trevor at any particular point in time, Monique says that there is no evidence of Trevor providing any support to Robert; rather, that the evidence shows that Trevor sought to protect Patricia from Robert, including stopping Robert having interactions with Patricia in which he brought her to tears. Monique says that this is made patent by Patricia’s diary extracts; and that it is consistent with the evidence of Ms Loretta Robinson (see above). It is also consistent with Monique’s own evidence (see above).

18. [701]

    As to the assertion by Robert that he was a member of Trevor’s household, Monique says that Trevor left the family farm (i.e., Wangrawally) at the start of 1993 and only came back for short periods thereafter, the longest of which was when he had appendicitis (when Monique says Robert stayed at Allawa with his grandfather). Monique says that when Robert came back to the farm he generally stayed with his grandfather due to the poor relationship he had with Patricia and Trevor. In this regard, Monique points to the evidence of Wayne Hatton, who worked full-time on the farms from 1993 to 2015, and Loretta Robinson, a neighbour of Patricia and Trevor (see above) and her own evidence in this respect.

19. [702]

    In my opinion, Robert’s assertions as to his dependence on Trevor at various times and as to being a member of his household from time to time must be treated with no little degree of caution. There is no evidence of financial support provided to Robert by Trevor. Although I would accept that if Robert was living with Trevor and Patricia without paying rent or board for regular or lengthy periods of time it might be said that he was dependent on them to that extent, weekend visits or the like by someone in Robert’s position (the adult child of Trevor’s partner) do not amount in my opinion to dependence on Trevor for the purposes of s 57(1)(e).

20. [703]

    It is clear that Robert did not live on a permanent basis at Wangrawally with Trevor (or indeed with Patricia after 1993) at any time after Trevor began living there in late 1996 or 1997. Robert himself says that his place of abode fluctuated over the years and on his own evidence he was living and working elsewhere for much of the time (and living from time to time with his grandfather). The question is whether the relatively short periods during which Robert says he lived with Trevor and Patricia, assuming for the moment that that evidence be accepted (i.e., on weekends while he was working at Cubbie Station; two or three times a year while he was living in the Northern Territory, during periods when he says he assisted with maintenance work or shearing, when he had appendicitis in 1998), have the degree of continuity and permanency of mutual living arrangements contemplated by Hallen J in Russell or would otherwise lead to the conclusion that he was a member of Trevor’s “household”.

21. [704]

    I make the qualification to the above that I am not by any means persuaded that Robert’s evidence as to the periods in which he lived with Trevor and Patricia is reliable. Robert’s affidavit evidence on this issue was not consistent and I regard it as significant that the references to living with Trevor and Patricia are largely in the 2023 Affidavit (sworn in support of his family provision claim when Robert must have appreciated that it would be necessary for him to establish that he was wholly or partly dependent on Trevor and a member of his household) rather than his 2021 Affidavit and, at least to a degree, inconsistent with the position depicted in the 2010 Proceeding when he was maintaining an alternative claim for family provision out of his grandfather’s estate.

22. [705]

    I accept the evidence of Mr Hatton, who was not shaken in cross-examination, and Ms Robinson, who was not required for cross-examination as to their observations (more accurately their lack of observations) of Robert staying or working at Wangrawally over the period. I consider that Robert’s visits to his mother (and Trevor)’s residence over the period from 1993 to 2006 (when the relationship with Trevor admittedly broke down) were not as a member of Trevor’s household but simply to visit Patricia. As to the evidence of Robert working on the property (Wangrawally) I note the conflict in the evidence as to what Robert actually did on the property over the relevant period but, even accepting that he was at the Walgett Properties from time to time to assist with shearing or the like, I do not accept that this rendered him a member of Trevor’s household.

23. [706]

    Therefore, I do not accept that Robert has established on the balance of probabilities that he is an eligible person under s 57(1)(e) to make a claim for provision out of Trevor’s estate and his application should be dismissed. However, even if I be wrong in that conclusion, the same conclusion would follow having regard to the conclusion I have reached on whether there are “factors warranting” the making of the application (to which I now turn).

24. [707]

    Robert submits that his “factors warranting” the making of this application are “somewhat unique”.

25. [708]

    In this regard, Robert says that he worked with his grandfather and gave many years of his life to assisting his grandfather with the family farm; and he emphasises that his great-grandfather, Jack Sanderson, established an “intergenerational family trust” with the intent that his great-grandsons would be allowed to continue on the farming tradition and having a home for life. If this is a reference to the 1962 Trust Deed, for which Jack Sanderson was the settlor, this begs the question again as to what property was ultimately the subject of that trust (which has already been addressed).

26. [709]

    The real complaint by Robert is that, through the breakdown of his parents’ marriage, Patricia commencing a de facto relationship with Trevor, and the “failure to remember the trust that Jack Sanderson established”, “much has been lost”. It is submitted for Robert that “[s]ome would see Robert’s entitlement to the farm as his birthright in what was previously, a multi-generational family farm”. Robert argues that someone like Trevor would recognise this and would be duty bound to provide for someone like him (referring here to his evidence of a warm relationship with Trevor “up to a point”).

27. [710]

    At [33] of Robert’s 2023 affidavit, he deposes that between the early 1990s and 2006 he became what he considered to be “close friends” with Trevor “as a colleague and my mother’s partner”. In his 2021 Affidavit, as noted earlier, he deposes to attendance at family events and social functions with Trevor.

28. [711]

    At [37] of his 2023 affidavit, Robert deposes that on taking the action to commence the 2001 Proceeding, his relationship with Trevor “was irrevocably broken” and “never resolved”. In cross-examination, Robert resiled from that proposition and maintained that they were still talking to each other and civil to each other (see above).

29. [712]

    Robert accepts that there was an “unfortunate” incident regarding police involvement (a reference as I understand it to his ultimately unsuccessful AVO application). However, Robert seeks to diminish the relevance of this by the submissions that “matters like this in families can flare up and that these events sadly do occur”. Robert says that the one-off occurrence of such events should not be seen as a “totally disqualifying event” noting the Court’s approach in estrangement cases where Robert argues that a strong degree of callousness must be present before disentitlement is found.

30. [713]

    It is also submitted for Robert that he sincerely apologised for his actions in the Facebook pages (though I note that this was only in re-examination (see 13/8/24; T 181) and only after he was effectively invited to do so). Such an apology is quite inconsistent with the resistance with which Robert made derogatory comments after Trevor in cross-examination (see for example the golden goose comment referred to earlier and his insistence that Trevor was not a “real partner” of Patricia). I do not suggest that the Facebook posts would amount to “disentitling conduct” (not least because they were after the death of Trevor) but the readiness with which Robert made such allegations (such as in his correspondence with Mr Davie) tells strongly against there being a close relationship between he and Trevor.

31. [714]

    Monique points out that Robert’s evidence in the 2010 Proceeding before Pembroke J was that if he ever even had a conversation with Trevor between 1993 and 2010 “it would have been brief” (which is squarely inconsistent, to say the least, with the rather expansive account Robert gives at [33] of his 2023 Affidavit as to the family and social events that he celebrated and attended with Trevor between the early 1990s and 2006, unless the two said nothing to each other during those events).

32. [715]

    Further, Monique says that Robert’s claim that he became “close friends” with Trevor was obviously false, referring to the evidence of Robert’s criticisms of Trevor during his life, the fact that Robert unsuccessfully sought an AVO against Trevor the day after Patricia’s funeral in 2014, and Robert’s Facebook comments (see above). Pausing there, insofar as the AVO application and Facebook comments post-dated 2006, this does not of itself falsify the claim that Robert had earlier been “close friends” with Trevor (noting that Robert himself says that the relationship had irrevocably broken down in 2006), although I accept that the evidence does not support the view that the two were close friends even before that time (as I have explained closer).

33. [716]

    Monique submits that Robert has not shown that there are “factors which warrant the making of the application”. Monique says that Robert cannot be regarded as a person who “would be generally regarded as a natural object of testamentary recognition” of Trevor, noting that an adult stepchild of a deceased “is not normally regarded as a natural object of testamentary recognition”. Monique says that this applies a fortiori in the present case, where: Trevor only commenced his relationship with Patricia after Robert was an adult and no longer living with his mother; and Robert’s relationship with Trevor was not only estranged, but actively hostile, including each of them having been on opposing sides in litigation and Robert unsuccessfully having sought an AVO against Trevor the day after Patricia died. I agree.

34. [717]

    Relevant in considering whether there are factors that warrant the making of the application would include the need for provision (having regard to Robert’s financial circumstances, which I consider below) and the size of the estate (which is certainly a large estate). Other factors would include the relationship between the claimant and the deceased. Regard may be had to what the community might expect of a testator even if the claimant is an eligible person.

35. [718]

    In the present case, the emphasis placed by Robert on his work assisting his grandfather on the family farm is in my opinion vastly overstated. On a number of occasions in his evidence Robert referred to having devoted 45 year to work on the farm, which is clearly an exaggeration (and was accepted as such) since that would have to have encompassed the period from birth and during early childhood (he turned 45 in 2011 after his grandfather had died) and Robert himself accepts that he did not work on the properties with his grandfather at least after 2006.

36. [719]

    As to the unique factor to which Robert here points, certainly, the Walgett Properties (the so-called Family Estate) had been in the Sanderson family for a number of generations and it may be accepted that Ian Sanderson encouraged Robert to pursue a career in farming (and may well have done so in the hope or expectation that Robert would carry on the farming business on the properties). It may well also be that there would have been an expectation in the Walgett community (as Douglas maintains there was) that the properties (or perhaps some of them) would stay in the family or go to Ian Sanderson’s grandsons. However, the suggestion that this would somehow have obliged Trevor, the long-standing partner and then husband of Patricia, to make provision for Robert in his will does not follow. That depends on a consideration of the family relationships after Ian Sanderson’s death.

37. [720]

    More relevant (and tending strongly against there being factors warranting the making of the application), the evidence does not establish a close relationship between Robert and Trevor; rather, the evidence discloses that Robert clearly disapproved of his mother’s relationship with Trevor (whether or not he blamed Trevor for the break-up of his parents’ marriage, Robert made consistently snide and derogatory remarks about their relationship (including his assertion that Patricia was Trevor’s “golden goose” and the accusations made at [45] of his 2021 Affidavit). Robert attributed to his grandfather unfavourable remarks about his mother (inconsistent with the trust his grandfather objectively placed in Patricia by executing the 2002 Power of Attorney and making her the executor under his 1987 and 2002 wills). Robert also caused distress to his mother (see Trevor’s affidavit evidence, supported by Monique’s recollection of discussions with Trevor) and no doubt to Trevor (such as by pursuing the AVO application the day after Patricia’s death).

38. [721]

    Robert’s relationship with Trevor had, on Robert’s own account, “irrecoverably broken down” by 2006 and never resolved. Even leaving aside Robert’s conduct in persisting to seek an AVO against Trevor the day after Patricia had died, it is laughable to suggest that community expectations would have been that Trevor would make provision in his will for an adult step-child who had consistently upset Patricia in her lifetime and with whom he had had no ongoing relationship for many years. It is also relevant to take into account that Robert had received (through the settlement of the proceedings in relation to Patricia’s estate) a legacy of over $1m (and forgiveness of adverse costs orders) out of his mother’s estate.

39. [722]

    In view of all of those matters, I consider that the evidence does not establish that Robert was a natural object of Trevor’s testamentary bounty. I find that Robert has not established factors warranting the making of the application. This is sufficient to dispose of his application for further provision out of the estate.

40. [723]

    This issue does not arise given the conclusions that I have reached above. However, I deal with it briefly.

41. [724]

    What is meant by the concept of adequacy of provision has been considered in various decisions (see, for example, Sgro v Thompson [2017] NSWCA 326; and, much earlier, Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122] per Callinan and Heydon JJ). In Hunter v Hunter (1987) 8 NSWLR 573 at 575, Kirby P said:

42. [725]

    The statutory enquiry as to whether the deceased made adequate provision for an applicant’s proper maintenance is determined from the perspective of a wise and just testator (aware of all the relevant circumstances) informed by accepted community standards (see Bosch v Perpetual Trustee Company [1938] AC 463 at 478-479 per Lord Romer; see also McKenzie v Topp [2004] VSC 90 per Nettle J (his Honour then sitting in the Supreme Court of Victoria) and Stone v Stone [2016] NSWSC 605 per Brereton J, as his Honour then was).

43. [726]

    Had it arisen, I would have concluded that, although Trevor’s will made no provision at all for Robert, it could not be said that adequate and proper provision was not made for him.

44. [727]

    Monique submits (and I agree) that Trevor did not owe Robert any moral obligation to make provision for Robert, given the relationship between Robert and Trevor (which Monique says, and I again accept, was characterised by Robert’s denigration and hostility towards Trevor) and having regard to the fact that Robert received more than $1.1m from his mother’s estate. (Although Monique also points to Robert’s affidavit evidence that he is owed over $400,000 in debts he can seek to have repaid, I can have no confidence in that evidence given the undocumented nature of the loans, the evidence of Stuart and Tracy as to the alleged debt owing by Stuart, and Ben’s position as a bankrupt. It seems to me that there can be little confidence that the debts will be repaid, even assuming that there are such debts in the first place.)

45. [728]

    Monique also points to the strong competing claims of Trevor’s children and grandchildren who are the beneficiaries of his estate (Louise, Luke and Hamish). It is noted that the interests of a beneficiary cannot be disregarded, and that a beneficiary is entitled to rely upon the terms of the deceased’s will and his or her competing claim, respectively, as a chosen object of the deceased’s testamentary bounty; and that each of Monique, Louise, and Luke raises her or his financial circumstances.

46. [729]

    Monique says that, in contrast to Robert, she and each of Louise, Hamish and Luke (as the children and grandchildren of the deceased), enjoyed a close and loving relationship with Trevor; that they each visited him regularly and provided him with various degrees of care and support, particularly from 2021, following the commencement of the Equity Proceeding and his cancer diagnosis. In the case of Hamish, Monique says that he assisted Trevor with the work and maintenance around the rural properties, and that, in the last weeks of his life, Trevor expressed a wish for Hamish move into Wangrawally to help run the rural properties. Monique submits that it is perfectly understandable that Trevor chose to leave his estate to his family; and says that there can be no doubt that it was to them that he owed his moral obligation.

47. [730]

    Further, Monique submits that Robert has failed to disclose to the Court as fully and frankly as possible all details of his financial circumstances (referring to my judgment in Leary v NSW Trustee and Guardian [2017] NSWSC 1113 at [52]ff) and hence says that the Court cannot be satisfied about Robert’s financial position concerning assets or income.

48. [731]

    As to his assets, Monique says that Robert has failed to produce all documentary records called for, in that he has still not produced his Commsec share trading account statements, transfers being made from that account to some accounts he has produced. Monique says that the need for a clear explanation of Robert’s true asset position is heightened in circumstances where Robert received $1.1m at the end of 2015 from the settlement concerning Patricia’s estate.

49. [732]

    Further, Monique says that Robert failed to disclose his true employment status with his delivery business and with The Blacket Agency (see his cross-examination at 13/8/24; T 147-149), and that Robert clearly is receiving money from other sources, such as cash jobs or another account, to pay his rent.

50. [733]

    Monique argues that Robert’s failure to disclose as fully and frankly as possible all details of his financial circumstances provides another reason for dismissing his claim, namely that he has failed to establish that his financial circumstances warrant provision.

51. [734]

    In response, Robert argues that he has made a substantial effort to disclose his financial and material circumstances and refers to his parlous financial circumstances and personal circumstances (that he lives on a disability pension without any person to support him, residing in a “modest apartment” (in Double Bay) with friends and eking out an existence as best he can performing odd jobs where he can) as establishing obvious financial need.

52. [735]

    In my opinion, Robert has not established that adequate and proper provision was not made for him under Trevor’s will (even though no provision at all was made for him under the will). In that regard, I place weight on the fact that, on Robert’s own account, his relationship with Trevor had irrevocably broken down many years before Trevor’s death in 2022 (i.e., in 2006); I do not accept Robert’s assertion that he and Trevor had a close relationship before then; I find that Robert had displayed hostility to Trevor before his death and disrespect after his death (which no doubt reflects Robert’s antipathy to Trevor before his death); and I have concluded that, as an adult stepchild of Trevor, Robert would not be regarded as a natural object of Trevor’s testamentary bounty. I also take into account the competing objects of Trevor’s testamentary bounty, namely his daughters, Monique and Louise, and his grandchildren. Frankly, the suggestion that there would be perceived to be any moral obligation on Trevor to make provision for Robert is risible in all the circumstances.

53. [736]

    It is not necessary in those circumstances to go further and dismiss the claim on the basis of a failure to provide full and frank disclosure of Robert’s financial circumstances although there is force to the criticisms made by Monique in this regard. In particular, the evidence (such as there is) does not make clear what Robert has done with the not insignificant legacy he received from Patricia’s estate (the making of some seemingly improvident loans, purchase of vehicles, payment of legal costs and living expenses seems to be the gist of his explanation for where the money was spent); and some of Robert’s evidence was either contradicted by that of other witnesses (such as the debt he claims is owing by Stuart) or implausible (such as the loan made to a former partner whom he was reluctant to name in the witness box but who was already named in his affidavit; and other undocumented loans he says he has now called upon but may have to sue to recover).

54. [737]

    Again, this issue does not arise and so I will only deal with this briefly.

55. [738]

    The factors that may be taken into account in determining adequate provision include those set out in s 60(2) of the Succession Act, those being:

56. [739]

    As to (a), I have referred above to the state of Robert’s relationship with Trevor. It commenced when Trevor and his mother began their relationship and Trevor moved in with Patricia (which was in about 1996 or 1997). It is telling that in cross-examination before Pembroke J, Robert said that from 1993 to the time of death of his grandfather (which was in 2010), if there had been any conversation between him and Trevor it would have been brief (8/10/2012; T 35.22). This is made clear by Monique’s recollection of her father’s account of his relationship with “Pat’s boys” and from Trevor’s own words. Robert himself accepts that the relationship with Trevor was irretrievably broken some years before Trevor’s death. One could reliably expect that Trevor would roll over in his grave at the suggestion that there was ever a close or warm relationship between the two and certainly not since 2010. This factor strongly counts against the making of any provision for Robert out of Trevor’s estate.

57. [740]

    As to (b), Trevor, as a father, clearly assumed moral obligations to his children with whom it appears he had a close relationship, particularly with Monique but also with Louise. It is clear on the evidence that he also had a close relationship with his grandchildren.

58. [741]

    As to (c), little more need be said than that the estate is large, comprising the Walgett Properties, farming business and company shares. Robert has deposed in his affidavit in the Family Provision Proceeding (at [42]) that the total value of the assets in his possession is $17,250; that he is owed a number of undocumented and unsecured loans ([43]) and to his daily expenses (even though he has not made complete disclosure of his income or other support he receives). Robert is on a disability support pension. The bank statements that were produced by Robert do not reveal any substantial savings. As to the financial circumstances and needs of the beneficiaries who have put those matters before me, I have already noted these.

59. [742]

    Factor (e) is inapplicable.

60. [743]

    As to (f), I have noted Robert’s physical disabilities and that he is in receipt of a disability pension. Apart from noting the reference in his affidavit to mental instability, it is not clear what that is.

61. [744]

    As to (g), Robert is now around 58 years old.

62. [745]

    As to (h), although Robert asserts that he has contributed to the work of the farm, his evidence on this issue was not compelling and I have accepted the evidence of Mr Hatton on this issue. I see no positive contribution by Robert to Trevor’s estate during Trevor’s lifetime.

63. [746]

    As to (i), there is no evidence of provision by Trevor for Robert in his life and none under the will.

64. [747]

    As to (j), Trevor’s testamentary intentions are clearly to benefit his close family members. The evidence of his statements close to his death are consistent with this. The evidence also discloses very negative comments about Robert.

65. [748]

    As to (k), there is no evidence of this.

66. [749]

    As to (l), Robert’s evidence is that no-one close is liable to support him. There is no reason to doubt this. It is unclear what if any provision was made for him out of his late father’s estate. Robert received $1.1m out of his late mother’s estate (as well as the benefit of forgiveness of costs liabilities), most of which he claims to have spent on legal expenses or otherwise dissipated.

67. [750]

    As to (m), Robert’s character and conduct before and after Trevor’s death can only be described as not to his credit and lacking in empathy for Trevor or Patricia. His Facebook posts make serious allegations against the character of each of Trevor and Patricia and can only be seen as vindictive and spiteful. The suggestion by Robert that these negative comments were to defend his own reputation in the community is laughable. I also note that Robert’s conduct in relation to Mr Davie in the pursuit of evidence to support his claim is reprehensible.

68. [751]

    Factors (n) and (o) are inapplicable. There are no other relevant factors to which my attention was drawn.

69. [752]

    Robert sought an order for provision in an amount sufficient to permit himself to house himself and to provide for vicissitudes in life, bearing in mind his station in life. There was no evidence as to what might be required by way of suitable accommodation save that Robert seems to want to have a property in Sydney as well as a homestead in the country. In cross-examination, Robert seems to have had in contemplation that he might have been given one of the farming properties. There is no evidence as to the value of those properties other than that which is contained in Monique’s affidavits sworn 11 October 2023 and 11 July 2024 (which Robert suggested might be the subject of challenge), at least some of which (Allawa and Uno) have since been sold; nor as to the impact on the feasibility of the Walgett farming business of one of the properties being transferred to Robert (cf the expert evidence apparently adduced before Pembroke J).

70. [753]

    Therefore, had I been of the opinion that Robert’s family provision claim should succeed, I would have done no more than provide a lump sum legacy in a relatively small amount (say $50,000) to provide a buffer for the future. As it is, no such order is warranted.

Ultimate determination

1. [754]

   For the above reasons, both the claims made in the Equity Proceeding and the claim for provision out of Trevor’s estate made in the Family Provision Proceeding should be dismissed with costs.

Costs

1. [755]

   Monique sought the opportunity, in the event that the proceedings be dismissed (as I have concluded they should be), to make submissions as to why costs should be awarded on an indemnity basis. Accordingly, I will make provision for a regime in that regard in the orders now to be made with a view to determining that application on the papers.

Orders

1. [756]

   I make the following orders:

   1. (1)

      Dismiss the proceedings with costs (reserving the question whether there should be an indemnity costs order).

   2. (2)

      Direct the defendants to file and serve within 14 days any submissions in support of an application for indemnity costs.

   3. (3)

      Direct the plaintiff to file and serve within 14 days thereafter any submissions opposing any application for indemnity costs.

   4. (4)

      Direct the defendants to file and serve any brief reply submissions within 7 days of receipt of the plaintiff’s submissions.

   5. (5)

      Note that any application for indemnity costs will be determined on the papers.