Kronenberg v Macaulay

1. [1]

   LEEMING JA: The parties to this appeal are the four children of the late Neil Macaulay who died in 2021 and his wife Janet who predeceased him in 2012. The appellants are their two daughters, Ms Christina Jane Kronenberg and Ms Tracey Maree Ford. The respondents are their two sons, Mr Scott Alexander Macaulay and Mr Craig Neil Macaulay. Without conveying either disrespect or undue familiarity, I shall refer to family members by their given names.

2. [2]

   The litigation concerns adjoining farms known as “Parkvale” (some 2,121 acres) and “Miltons” (some 404 acres) which were owned or co-owned by Neil at the time of his death. Neil owned Parkvale, and co-owned Miltons with Scott as tenants in common. A partnership operated an agricultural business over Parkvale, Miltons and a third adjoining property, Fairfield (some 607 acres) which also adjoins Parkvale and which is in Scott’s name. The partnership had originally been constituted by Neil, Janet and Scott, but after Janet’s death was continued by Neil and Scott alone. The farms are some 10 kilometres to the north east of Parkes, on the road to Wellington, and combined mixed cropping with livestock activities.

3. [3]

   Janet’s will left her entire estate to her husband. By will made in August 2018, which was the will admitted to probate, Neil left a residential property “Endeavour Place” in Parkes to Scott, but the balance and substantial majority of the estate was left to Christina, Tracey, and Craig in equal shares. The three were also appointed executors. According to the inventory annexed to the grant of probate, the main assets of the estate were Parkvale valued at $6,100,000, the estate’s interest in Miltons valued at $1,000,000, “Endeavour Place” valued at $470,000, bank deposits, shares and superannuation of some $1,450,000, farming equipment of $130,000, and debts owed by Parkvale Farm Pty Ltd of $424,855 and by the partnership in an unspecified amount.

4. [4]

   Scott brought proceedings in the Equity Division of this Court, primarily seeking relief by way of declarations of constructive trust that Parkvale and Miltons were held for his benefit, based on a series of representations to the effect (speaking generally) that the farms would “ultimately” be his, or, alternatively, based on a “common intention” constructive trust or a “joint endeavour” constructive trust. The latter was a reference to a constructive trust of the type recognised in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59. It is unnecessary for the purposes of this appeal to consider whether there is any species of common intention constructive trust which is not apprehended by either proprietary estoppel or a joint endeavour constructive trust.

5. [5]

   In the further alternative, Scott sought an order for family provision pursuant to s 59 of the Succession Act 2006 (NSW). The defendants were his brother and two sisters, and the three filed a joint defence and a joint amended defence. There were no cross-claims.

6. [6]

   There was a single trial on all issues. However, at the time of trial, Craig was not represented by counsel and solicitors who acted for his sisters, but instead appeared unrepresented for himself. He was cross-examined, but did not cross-examine Scott or Christina and only cross-examined Tracey briefly. After the evidence concluded, Craig addressed relatively briefly, including by reference to notes recorded by Neil’s accountant at a one-on-one meeting with Neil on 29 February 2016 when Neil favoured drafting a will which would divide the total land between both sons “so that each son would have sufficient land utilised as farming that would give a decent return”, and which went on to record transferring Fairfield and some of the paddocks of Parkvale to Craig with the balance going to Scott.

7. [7]

   The primary judge reserved following a ten day trial, and delivered reasons for judgment occupying 498 paragraphs some three months later: Macaulay v Macaulay [2024] NSWSC 1547. Speaking generally, the primary judge upheld Scott’s claims, based on statements made over around three decades by Neil that the farms would be his and ordered substantial relief in his favour, but doing so conditionally. His Honour said in the last six paragraphs of his reasons that it was unnecessary to deal with the claims that Parkvale and the part of Milton owned by Neil were held subject to a common intention constructive trust or a joint endeavour constructive trust, and that it was unnecessary and in any event inappropriate to deal with the application for family provision.

8. [8]

   The orders declared that the executors held legal title to Parkvale, save for three paddocks, and all of their interest in Miltons, on trust for Scott, subject to the condition that Scott convey free and clear title to Fairfield to Craig, and renounce the devise of the residential property to him under the will. The three paddocks are unimaginatively named “U”, “AE” and “Q” and extend to the west of Fairfield, increasing its area from 607 to 802 acres and giving it access to a bore contained in paddock “AE”. The paddocks are large; paddocks “U”, “AE” and “Q” together comprise almost 200 acres and amount to almost 10% of Parkvale.

9. [9]

   His Honour also declared that the partnership that had originally been formed in 1989 between Neil, Janet and Scott had been carried on by Neil and Scott as equal partners, and that Scott owed the amount of $453,288.11 to Neil and Scott in relation to the refinancing of Fairfield.

10. [10]

    Thus, the difference from Scott’s perspective between the result under the will and the result under the judgment is that under the latter he obtained around 90% of Parkvale (all save for paddocks “U”, “AE” and “Q”), and the half of Miltons he did not already own as a partner, but subject to conditions that (a) he had to transfer Fairfield to his brother, (b) he had to repay the debt he owed to the partnership of $453,288, and (c) he had to renounce Endeavour Place. The appeal proceeded on the basis that Scott would choose to satisfy those conditions (a course which would prima facie be rational in light of the apparent value of Parkvale and Miltons). Both under the will and under the judgment, he became a 50% partner in a partnership whose other half was owned by his siblings and which needed to be wound up.

11. [11]

    From Craig’s perspective, instead of the one third interest in the estate excluding Endeavour Place which he would have received under Neil’s will, under the orders made at first instance Craig will likely receive the entirety of Scott’s farm Fairfield, clear of debt, plus a third of the residuary estate which includes the three paddocks “U”, “AE” and “Q” of Parkvale. This resembles Craig’s closing submission, save that rather than acquiring those three paddocks outright, Craig is jointly entitled to them with Christina and Tracey.

12. [12]

    From the perspective of Christina and Tracey, they remain one third residuary legatees of a greatly diminished estate, which will now include the residential property but will exclude the most valuable assets, namely, Parkvale (save for paddocks “U”, “AE” and “Q”) and Neil’s interest in Miltons.

13. [13]

    Christina and Tracey have brought this appeal. By way of summary, the appellants do not challenge the findings that over many years Neil made the statements to Scott, but they say that they were, in their context, insufficient to give rise to an estoppel (grounds 1-4), that the primary judge erred in concluding that Scott had relied upon them (grounds 5-9), and to his detriment (grounds 10-12), and they say that the primary judge erred in granting relief (grounds 15-20). A challenge to the finding that the partnership had become carried on by Neil and Scott in equal shares (grounds 13 and 14) was abandoned shortly prior to the hearing.

14. [14]

    Scott opposes all aspects of the appeal. There is no notice of contention dealing with the aspects of his case left undetermined. Craig appeared unrepresented, as he did at trial. He supports the decision of the primary judge.

15. [15]

    The appeal lies as of right from a final hearing involving an amount considerably in excess of the $100,000 specified in s 101(2)(r) of the Supreme Court Act 1970 (NSW). It turns principally on questions of fact. Some of the issues of fact are documentary, but many are informed by testimonial evidence. This Court must make proper allowance in favour of the primary judge who saw the four siblings and other witnesses give evidence as the trial unfolded, as Mr Young SC stated, who appeared with Mr Gunning for Scott in this Court (but not below), in accordance with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. Mr Cheshire SC, who appeared with Mr Kabilafkas for the appellants in this Court (but not below save in relation to a supplementary hearing), acknowledged this, and maintained that he did not seek to overturn any finding of primary fact, as opposed to the conclusions reached by the primary judge that the elements of an estoppel had been made out, and as to the exercise of discretion in granting relief.

16. [16]

    Enough has been said to demonstrate that the outcome is a surprising one. The primary judge found that Scott had made “life changing decisions” based on representations that Parkvale and Miltons would be his. There are large issues whether the representations found by the primary judge were made, and relied upon by Scott, and whether in doing so he suffered material detriment, but put that to one side. On Scott’s pleaded case, those representations were unqualified and took place over some two decades. Yet the relief fell well short of that, in that not only was he required to give up the only property he in fact received under his father’s will, but he was also required to give up a substantial farm held by him in his own right – which he had owned to the knowledge of his father throughout decades of representations being made. Scott also did not receive some 200 acres of the farm he was promised. Further, the conditions imposed by the judge’s orders worked in two quite distinct ways. The devise to Scott of Endeavour Place fell into residuary estate, but the practical effect of the orders made is that the farm Scott had owned for decades was to be transferred not to the estate as part of the price of obtaining relief for the proprietary estoppel, but instead to his brother’s substantial advantage and to his sisters’ substantial disadvantage. And some 200 acres of Parkvale continued to be held beneficially by the estate, to be divided between Christina, Tracey and Craig. It would seem that those acres are insufficient to conduct an independent farming operation, while at the same time they have a special value if combined with Fairfield (to be owned by Craig) or Parkvale (to be owned by Scott). That is to say, the practical effect of the orders is not to resolve the controversy between the siblings, but instead to divide the ownership of the farms so as to require a further agreement between them.

17. [17]

    The explanation for some of those unusual aspects, and an important aspect of the case, was that from no later than 2007 Neil’s testamentary intentions changed. Rather than Scott receiving all the land, Scott was to receive Parkvale (or most of it) and Miltons, on condition that Scott transfer Fairfield to Craig. That was reflected in wills drafted by Neil in 2007, and there was a deal of evidence that that remained Neil’s position for almost a decade after 2007. The change is significant in relation to Scott’s reliance on the earlier representations, and the way in which orders were made.

18. [18]

    The primary judge did not determine the claim for an order for family provision. That course was available to him because, having found Scott to be entitled to most of Parkvale and all of Miltons, he did not see any circumstance in which Scott would be entitled to further provision. His Honour added that if he were wrong about proprietary estoppel, it was not possible to determine the claim for family provision prior to the partnership being wound up. His Honour stated at [497] that this was by no fault of any of the parties.

19. [19]

    The failure to determine, whether actually or contingently, the claim under the Succession Act would have come as a surprise to the parties, who exchanged lengthy closing submissions on that claim (paragraphs 148-184 of the plaintiff’s closing written submissions, and paragraphs 374-420 of the defendants’ closing written submissions) and brief oral submissions on that claim. So far as I can see, the primary judge gave no indication that he might not determine it. A great deal of the judgment, insofar as it is directed to the relations between Scott and Neil, and especially the large rift between them (leading to various allegations of assault, a criminal trial (where Scott was found not guilty) and an apprehended violence order) reflects the evidence adduced by the parties which was principally if not wholly relevant to the discretion to make an order for family provision.

20. [20]

    This approach departed from “the general principle that a trial judge should determine all issues in order to assist the appeal process and obviate the need for a retrial”, as Bell CJ, Mitchelmore JA and I said in Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227 at [99]. There are occasions where it is unnecessary to take that course, as noted by Ward ACJ, Kirk JA and me in Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174 at [129]-[131]. But the general position remains as Giles JA said in Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) [2008] NSWCA 78 at [6]:

21. [21]

    A recent example where the court has determined a family provision claim in the alternative, despite having accepted the plaintiff’s claim based on estoppel, is Erem v Moussa [2024] NSWSC 641 at [276]. Indeed, as Robb J observed in Daniel v Athans [2022] NSWSC 1712 at [183], in addition to judicial efficacy, matters bearing on the family provision claim may provide further context for the estoppel claim.

22. [22]

    But the short point is that ordinarily there is no good reason not to determine fully litigated alternative claims, even if there are difficulties in doing so because of the way the evidence has been adduced. The greater evil, ordinarily, is a re-trial. The remitter which is necessary in light of the success of this appeal is a consequence of a fully-litigated claim not having been determined at trial.

The property

1. [23]

   There are three “farms” in this litigation, although in point of law each comprised a number of separate parcels of land, and in point of fact each comprised a number of paddocks and some improvements. The reasons of the primary judge included the following sketch, slightly amended from a sketch which was in evidence, but to which no party made any objection, to describe the general layout of the properties:

2. [24]

   Parkvale contains a homestead and many farming improvements. Fairfield also contains a house and some farming improvements (including sheds and facilities for grain storage) but not so many as Parkvale. The primary judge stated that “the Partnership farmed all of the lands together using the far better and constantly maintained infrastructure on Parkvale”. Significantly for the relief ultimately granted, the primary judge observed at [23] that:

3. [25]

   The three paddocks within Parkvale which were to be transferred to Craig are marked “U”, “AE” and “Q” on the northern boundary. The “battle-axe” paddock AE contains a bore in its “handle”.

4. [26]

   In September 1988, Neil and Janet sold properties in Cootamundra and purchased the 2,121 acres comprising “Parkvale” as joint tenants. The purchase price was $1,082,500.

5. [27]

   At that time, Scott was around 25 and had spent around a decade after leaving school working in agriculture, including most recently on a farm exchange in Alberta, Canada. On 30 June 1989, a partnership known as the “Parkvale Pastoral Co” was established between Neil, Janet and Scott. Despite the name, no company was incorporated, and the three farmed Parkvale as a partnership. Each of Neil, Janet and Scott had a one-third interest in the partnership until Janet’s death in 2012. Neil and Scott continued thereafter as partners until 2017. (Lest it cause confusion, “Parkvale Farm Pty Ltd” mentioned above as a debtor to Neil’s estate is distinct from the name of the (unincorporated) partnership; the primary judge noted at [307] that apparently that company was the trustee of a trust established after the dissolution of the partnership in 2017, and it may for present purposes be disregarded.)

6. [28]

   In January 1995, Neil, Janet and Scott completed the purchase of the 404 acres comprising “Miltons” as tenants in common in equal shares. The purchase price was $270,000. Thereafter the partnership farmed Miltons as well.

7. [29]

   In 1999, Scott purchased the 607 acres comprising Fairfield. Scott became the registered proprietor of the land. The purchase price was $466,000. I shall return to how this was financed shortly. The partnership thereafter farmed Parkvale, Miltons and Fairfield, using various facilities (such as sheds and silos) which were predominantly located on Parkvale. The primary judge found at [433] that the partnership did not pay rent to Scott for the use of Fairfield. The position concerning rent is far from clear. The financial statements prepared on behalf of the partnership show wildly fluctuating expenses of rent: in 2010 rent of $123,120 was paid; in 2011, $5,698; in 2012 $61,560; in 2013, 2014 and 2015 zero. It has not been possible by reference to the materials in the appeal books to identify who derived the prima facie assessable income of $123,120 paid by the partners by way of rent in the financial year ended 30 June 2010.

8. [30]

   Scott married his first wife Ann-Maree in 1990. They originally lived in a shearer’s cottage on Parkvale, but moved into a house in Victoria St, Parkes in the mid 1990s. After purchasing Fairfield in 1999, Scott and his family (which by then included three children) lived in the homestead until around 2003 or 2004, when their eldest child started high school and they returned to Victoria St. Scott and his wife separated in around 2006, when the region was severely affected by drought, and Scott spent time working in the mines as well as seeking to maintain the farms. After the divorce, Scott returned to Parkvale (by this time, his parents had moved to Endeavour Place). The primary judge recorded at [54] that it was unclear how long Scott lived at Parkvale after 2012, but inferred that in 2015, his new partner Cathie purchased a home at Hillcrest Avenue, Parkes where he moved at some point and which remained Scott’s permanent address.

9. [31]

   As noted above, in 2005, Neil and Janet purchased a house in Endeavour Place, Parkes, and moved there from the Parkvale homestead.

10. [32]

    Parkvale. Parkvale was purchased by Neil and Janet using, in part, the proceeds of sale of properties owned by them in Cootamundra.

11. [33]

    Miltons. The evidence contained a receipt for $27,000 seemingly dated 4 December 1993 and an undated memorandum of transfer, to Neil, Janet and Scott as tenants in common for the land to the south of Parkvale known as Miltons. The stated price was $270,000. An index to the supplementary appeal books stated that the transfer was registered on 21 January 1994. That is consistent with documents obtained from the Commonwealth Bank which were in evidence. These included an acknowledgement signed by Neil dated 12 January 1994 to the manager of the Cootamundra branch of the Commonwealth Bank of Australia recording that he guaranteed the obligation of Neil, Janet and Scott to repay up to a maximum of $320,000, which guarantee was secured by a mortgage over Parkvale. The Bank’s security register indicates that each of Neil and Janet provided such acknowledgements on 12 January 1994.

12. [34]

    In short, and I did not understand there to be any dispute about it when the appeal was heard, the deposit for Miltons and the financing of the loan which paid the balance of the purchase price was paid by the partnership.

13. [35]

    Fairfield. Precisely how Fairfield came to be purchased is not clear. Scott was the sole registered proprietor, and he borrowed money from the CBA to acquire it. Scott’s affidavit had said that the partnership had borrowed funds to purchase Fairfield, it was an interest only loan, and the partnership paid the interest repayments. He confirmed as much in cross-examination. There was a large issue at trial, called the “paper debt” or the “Fairfield debt” issue, because for many years the partnership financial statements recorded a debt owed to the partnership by Scott. The primary judge found at [432]-[433]:

14. [36]

    There was no challenge to those findings. Thus in point of law, the large majority of the purchase price was provided by Scott, who borrowed money from the Commonwealth Bank which he was personally liable to repay, and which was secured inter alia by a mortgage over Fairfield: Calverley v Green (1984) 155 CLR 242 at 257; [1984] HCA 81. That is so notwithstanding that it appears that in point of fact the deposit was paid by, and the mortgage serviced by, Neil, Janet and Scott as partners.

15. [37]

    Significantly for Scott’s claim of reliance and detriment, Neil, Janet and Scott refinanced with Rabobank in 2011. Prior to the refinance, Scott owed Commonwealth Bank some $453,288.11 for the purchase of Fairfield, while Neil and Janet owed $420,000 for the purchase of Endeavour Place. In addition, the partnership had borrowed from the Commonwealth Bank. These separate debts were replaced by a single facility on which all three were primary debtors. The primary judge explained this at [141]-[144]:

16. [38]

    Consistently with that account, the Rabobank statements in evidence suggest (because a debit of $1,094,814.50 on 13 April 2011) that it was on that date the existing indebtedness to the Commonwealth Bank was repaid. As the primary judge said, the partnership financial records for the year ended 30 June 2011 recognised the indebtedness to Rabobank as a liability, and raised assets of $420,000 owed by Neil and Janet, and $453,288.11 owed by Scott (in the previous year, Scott was recorded as owing only $6,526.96 and Neil and Janet owed nothing). The entries were described as “Loan: Scott Macaulay re: Fairfield” and “Loan: NJ and JT Macaulay (Refinance Loan)”.

17. [39]

    The effect of the Rabobank refinance is that all three partners (Neil, Janet and Scott) became personally liable for in excess of $1,000,000 owed by the partnership to Rabobank, at least in large measure reflecting money borrowed to acquire Fairfield and Endeavour Place.

18. [40]

    Thereafter Scott’s debt to the partnership remained constant. Indeed, that debt was in issue at trial, and was determined, adversely to Scott, requiring him to repay the partnership in the same amount of $453,288.11. The effect of the refinancing was that Scott enjoyed an interest-free loan from the partnership of substantially the entire purchase price of Fairfield, while the partners (of whom he was one) paid the cost of financing that indebtedness.

19. [41]

    Neil and Janet made mutual wills in January 1988, leaving their estates to the other and to their children in equal shares if their spouse predeceased.

20. [42]

    In February 2007, Neil and Janet made further mutual wills. Neil’s will was in evidence. It and a later will he made that year were important elements of Scott’s case.

21. [43]

    Neil’s February 2007 will was partly handwritten and partly typed. Neil left his estate to Janet, but if she predeceased him, Fairfield was to be left “debt free” to Craig, while Scott was to receive (a) Parkvale, (b) Neil’s two thirds share of Miltons, (c) Neil’s interest in the partnership, subject to paying partnership debt of $300,000 and the Fairfield debt of $260,000 and its transfer to Craig, and payment by Scott of $250,000 to each of the other three children should he enter into a property settlement prior to 2017 (there were more details but they do not matter). As the primary judge noted at [73]:

22. [44]

    It will be seen that Neil regarded Fairfield as his to dispose of by will.

23. [45]

    In October 2007, a professionally drafted will, to the same general effect as the February 2007 will, was drawn up and executed. It contained an error, in that it left two thirds of “Fairfield” (which Scott held in his own name) to Scott, and made no mention of “Miltons” (which was owned by Neil, Janet and Scott as tenants in common, and which in the event that Janet predeceased Neil without altering her will, would be owned as to two thirds by him).

24. [46]

    Significantly (and assuming the reference to Fairfield in the October will is to be read as Miltons), both these 2007 wills reflected what Scott said was the revised assumption induced by Neil, that he would receive Parkvale and the remaining share of Miltons, but on condition that he transfer Fairfield debt free to Craig.

25. [47]

    In August 2016, Neil made another will. By this time, Janet had died and Neil was aged 81. There had also been a series of fallings out between Neil and Scott. Neil’s will was professionally drafted and left the entirety of his estate to the four children in equal shares. The primary judge recorded at [81]:

26. [48]

    There was no challenge in this Court to the rejection of Christina’s and Tracey’s evidence on that issue.

27. [49]

    Neil’s final will was made in August 2018. Under that will, which was the will admitted to probate, Scott was to receive Endeavour Place, but the balance of Neil’s estate was to be divided between Christina, Tracey and Craig in equal shares.

28. [50]

    The primary judge recorded at [5]:

The representations on which Scott relied

1. [51]

   The pleading of Scott’s claim which went to trial alleged that:

2. [52]

   Scott’s case was straightforward. He said that Neil had promised, repeatedly, over a thirty year period, that he would “inherit and/or become the owner of the whole of Parkvale and Miltons”, in a series of one-on-one conversations, in family discussions, and in dealings with third parties, as well as in Neil’s October 2007 will.

3. [53]

   As will be seen, the primary judge found that the words said to have been spoken by Neil were spoken, and there was no challenge to those findings of primary fact. But that is far from the end of the challenges in this aspect of the appeal. It may assist understanding the balance of these reasons to sketch the complexities and how they arose.

4. [54]

   First, it will be seen that the pleading alleged three decades’ oral representations, and relied on the 15 October 2007 will. But the third decade of that timeframe, from no later than 2007 until 2017, had to accommodate the fact that Neil repeatedly required that Scott would give up Fairfield to Craig. Faced with that evidence (including the terms of the October 2007 will), the case advanced at trial was qualified by a condition that Scott’s entitlement to Parkvale and Miltons was subject to his transferring Fairfield to Craig (see Tcpt 26.08.24 T817.10-23).

5. [55]

   Secondly, the pleaded case extends to and distinguishes between the real property (Parkvale and Miltons) and the partnership business. The representations tended to be confined to the former.

6. [56]

   Thirdly, it is one thing to find that certain words were said. It is another to characterise the representation conveyed by those words. In particular, there is a familiar distinction between cases of proprietary estoppel leading to an inter vivos entitlement to the transfer of an interest in land, and cases leading to the representor, if he or she predeceases the representee, being obliged to transfer an interest in land by his or her will. The pleading does not explicitly address this.

7. [57]

   Fourthly, the pleading and the submissions at trial and the reasoning of the primary judge segregated the “issues” of representation and reliance and detriment as though they were discrete. But they overlap, and in a number of different ways. For one thing, where the representations are said to have been made over some thirty years, it is self-evident that the steps taken by Scott in reliance upon them occurred over a long period of time, and some of those steps preceded some of the representations. This is acutely important in relation to things done in reliance of what was said in the first twenty years, before the change of case (whereby as a condition of receiving Parkvale and Miltons, Scott had to give up Fairfield). For another, with the benefit of hindsight, it is now known that for the last decade, the representations were materially different (subject to a point raised by Scott whether giving up Fairfield was significant). The appellants emphasised that that, coupled with other changes (such as the question of various northern paddocks of Parkvale also being left to Craig) informed the assessment of whether it was reasonable for Scott to have relied on any of the representations.

8. [58]

   Those considerations produce the result that while the findings of the representations are challenged in grounds 1-4 of the appeal, it is convenient, before addressing the evidence and his Honour’s reasons and the parties’ submissions on those grounds, first to address his Honour’s findings concerning the events between 2014 and 2018 leading to the rift between Scott and Neil and resulting in the substantial change between the 2016 and 2018 wills, and the wills of 2007.

Events of 2014-2018

1. [59]

   A great deal of the evidence, and a great deal of the reasons of the primary judge (paragraphs [147]-[322], which is to say around one third of the judgment), concern the events of the five years 2014-2018. His Honour’s reasons recount the evidence and make findings of fact. All were favourable to Scott, and none is challenged on appeal. I shall summarise them relatively concisely, following the same order.

2. [60]

   The two important non-family members in this part of the narrative are Mr Geoffrey Twomey, the partnership’s accountant based in Cootamundra and Young, and Mr Graham Billing, a solicitor based in Orange. Mr Twomey gave evidence and the primary judge regarded him as an impressive witness. Mr Billing did not give evidence.

3. [61]

   The suggestion that the 2007 will be revisited. By letter dated 22 December 2014 to Mr Billing, Mr Twomey raised a number of matters concerning the will, following a conference with Neil and Scott on 16 December. After referring to a number of errors in the will, the letter stated that the resultant acreage under the will (whereby Scott was to transfer Fairfield to Craig but receive Parkvale and the remaining share of Miltons) would be approximately 80% to Scott and 20% to Craig, and that the livestock should be split in the same ratio. The primary judge accepted that Mr Twomey was a thoughtful witness, and the letter accurately reflected his instructions, leading to the finding that “Neil’s testamentary wishes as at December 2014 had not materially changed since 2007”: at [150].

4. [62]

   The June 2015 meeting. This meeting with Mr Twomey was attended by Neil and all four children. Mr Twomey had prepared an agenda. Omitting the aspects of the account that concerned the partnership structure (which are no longer part of the appeal), the primary judge reproduced an agenda for a meeting of 11 June, the first item of which was:

5. [63]

   The primary judge at [156] recounted some of the testimonial evidence at the meeting, and found that the substance of Scott’s recollection was correct:

6. [64]

   That evidence accorded with Mr Twomey’s recollection.

7. [65]

   The 30 September 2015 meeting. Neil and Scott met Mr Twomey again on 30 September 2015. The primary judge reproduced the following part of Mr Twomey’s notes at [165]:

8. [66]

   The primary judge said of this that:

9. [67]

   The primary judge also referred to item 4 in his note and the need for there to be agreement between Craig and Scott. His Honour said at [167]:

10. [68]

    November 2015 – alleged assault. The primary judge recorded that by the second half of 2015, there was a deep antipathy towards Scott from Christina, Tracey and Craig. In part this was as to whether Craig should receive more under Neil’s will than Fairfield. Scott and Tracey fell out when Scott told her that he no longer wanted her husband to do work on Parkvale.

11. [69]

    On 5 November 2015, there was an incident at Parkvale. The primary judge found that Neil assaulted Scott, approaching him from behind with a galvanised steel pipe and laying a heavy blow to him. The primary judge accepted that Neil had told Craig that evening that Scott had thrown his father to the ground and attacked him, but did not accept that that was what occurred, concluding that he was “comfortably satisfied that Scott did not assault his father on 5 November 2015”.

12. [70]

    Craig gave evidence that Scott was abusive to his father on 9 November 2015, concerning the nozzle of a fuel hose which was dragged behind the ute. The primary judge found that Scott yelled at his father but was not “abusive”, and that Neil said “you won’t get an inch of this place”: at [185].

13. [71]

    The February 2016 meeting and the 2016 will. Some 16 pages of reasons are devoted to these topics.

14. [72]

    There was a meeting on 1 February 2016 at Mr Twomey’s office between him, the four siblings and Neil. The primary judge summarised the competing recollections of the participants. Christina and Tracey said that Scott had suggested that Neil split the estate four ways. Craig said that he suggested he receive the whole of Parkvale free of debt. Scott opposed this as well as the four way split, but said he was willing to accept Neil’s suggestion that Craig should receive Fairfield plus three paddocks in the north of Parkvale.

15. [73]

    The primary judge found at [210] that there was discussion of a four-way split but that neither Neil nor Scott actually agreed to a distribution on that basis.

16. [74]

    According to a letter from Mr Twomey to Mr Billing on 29 March 2016, Neil was “confused with the intentions of his children” at the 1 February meeting, and so he asked Neil to visit him when next in Cootamundra. When that occurred, Mr Twomey recorded his testamentary wishes that Christina and Tracey receive each around $950,000, that Craig should receive “approximately 1000 acres” being Fairfield plus five paddocks in the northern part of Parkvale, which would represent some 43% of the land and improvements in Neil’s estate, together with one third of the livestock. The same letter also notes that Scott “would receive 57% of his father’s land and improvement value”.

17. [75]

    The primary judge then recounted with some care the documentary and testimonial evidence leading to the execution by Neil of a will on 26 August 2016, by which Neil divided his estate equally between his four children. He rejected the appellants’ contention that the 2016 will represented a division of Neil’s estate to which Scott had agreed: at [240]. He also recorded that Tracey and Christina took steps to hide the new will from Scott and Mr Twomey, while Mr Twomey continued to take steps to explore ways by which Neil could leave his land to Scott and Craig.

18. [76]

    The primary judge found at [247] that Scott discovered the existence of the 2016 will on 19 September 2016. His diary note recorded “Craig informed me FARM (DAD’S) is willed to go x4 I told him it wouldn’t work! With me at the moment managing it”. The diary also records that he spoke to his father two days later, on 21 September, who told him “its not going 4x” and “Craig gets FAIRFIELD after I sign + 3 paddocks Parkvale”.

19. [77]

    16 September 2016 assault. At [251]-[254], the primary judge addressed Christina’s evidence that Neil had told her that Scott had physically assaulted Neil. His Honour noted at [253] that “Neil was entirely capable of making false allegations of assault against Scott”, and found that the assault did not occur.

20. [78]

    31 October 2016 alleged assault. Craig gave evidence that Neil had told him that Scott had thrown him down in the sheep yards. Scott denied this. Scott said that Neil had picked up a loose metal bar and threatened Scott, but that Scott had got out of his way without any physical contact. The primary judge accepted Scott’s account.

21. [79]

    4 February 2017 alleged assault. The primary judge considered whether there had been a confrontation between Neil and Scott of some kind, this time involving physical contact. However, his Honour accepted Scott’s evidence that he did not strike his father or grab him forcefully by the left arm or clothing, despite Craig saying that Neil visited him in a distressed state, with a laceration and swelling in his right cheek.

22. [80]

    March 2017 – Macaulay family discussions. On 6 March 2017, all four siblings met on the verandah of the Parkvale homestead and evidently talked about Neil’s will. Scott’s note was:

23. [81]

    Of this record of seeming agreement by Scott to a four way split, the primary judge said at [265]-[267]:

24. [82]

    June 2017 – meeting with Mr McGroder. Neil met with a new solicitor, Mr Neil McGroder, on 29 June 2017. Scott drove him to the appointment but did not attend with him. Mr McGroder was of the view that he had testamentary capacity. His notes record that Neil gave the following instructions:

    1. (1)

       Executors and trustees were to be Christina and Scott.

    2. (2)

       Scott was to receive 2,000 acres of Parkvale, on condition that he transfer Fairfield to Craig.

    3. (3)

       Craig was to receive 330 acres at the northern end of Parkvale. These acreages seem a little imprecise, but Mr McGroder twice noted that Craig was to get 1,000 acres unencumbered.

    4. (4)

       Neil’s interest in the Partnership was to go to Scott.

    5. (5)

       The Orange house was to go to Tracey.

    6. (6)

       The Parkes house was to go to Christina.

    7. (7)

       The residue was to be divided among the four children.

25. [83]

    Some notes on a paddock plan suggested, according to the primary judge, that Neil wanted four paddocks to the north of Parkvale to go to Craig, that Miltons would go to Scott and Scott would give Fairfield to Craig.

26. [84]

    Although Neil gave an authority for his file to be transferred to Mr McGroder, that did not occur. Instead, there was a meeting with Mr Billing, Neil and a new lawyer, Mr Blackwell, where Neil gave instructions not to follow the authority document. Neil also gave instructions as to being assaulted on three occasions, at least two of which were found by the primary judge not to have occurred. The result was an accusation in correspondence from Mr Billing to Mr McGroder concerning the circumstances in which he had seen Neil and how the authority had been drafted.

27. [85]

    The primary judge concluded in relation to this evidence at [283]-[285]:

28. [86]

    30 July 2017 – the ute incident. At [286]-[302], the primary judge addressed the events of 30 July 2017. According to Scott, Neil’s ute broke down and he had to walk homewards; he was picked up by Scott and taken to Endeavour Place. Scott said that as he was driving into town, he told his father that:

29. [87]

    However, Tracey gave evidence that Neil told her that:

30. [88]

    Tracey encouraged him to report the incident to police, which he did. Neil was interviewed by police and a transcript was in evidence. Neil told police:

31. [89]

    Scott was brought in and interviewed. He agreed he had argued with his father, but not about the will. He denied throwing him from the vehicle or assaulting him. Scott was charged with assault occasioning actual bodily harm, and an apprehended violence order was made. The primary judge noted that it was not disputed that the effect of the order was that Scott could not go onto Parkvale.

32. [90]

    The charge proceeded to trial in June or July 2018 and Scott was found not guilty.

33. [91]

    The primary judge reviewed the evidence bearing on this, and regarded Neil’s account as unreliable. His Honour concluded at [302] accepting Scott’s account of the incident, rejecting that Scott assaulted Neil on 30 July 2017.

34. [92]

    Neil terminates the partnership. On 1 September 2017, Neil served a notice of termination of the partnership on Scott (at this stage, Scott was subject to the apprehended violence order and could not work on the farm). The primary judge recorded that Scott had been “entirely ostracised from the family ever since”. Despite owning Fairfield, the water supply from Parkvale was cut off, and he leased Fairfield to a neighbour.

35. [93]

    The 2018 will. Finally, the primary judge recorded that on 2 August 2018, a solicitor acting on behalf of Scott put his position by letter that Scott and Neil had agreed to be equal partners. The following day Neil signed an informal will which had been prepared by Tracey. The primary judge stated at [312]:

36. [94]

    The will was executed on 10 August 2018. Just before the close of evidence, the primary judge recounted that Craig gave evidence concerning the circumstances in which the will was executed, leading to an application by Scott to challenge the grant of probate. The primary judge refused the application, and there is no cross-appeal from that decision.

Representations (grounds 1-4)

1. [95]

   Ground 1 was that the primary judge erred in finding that the representations were made. Ground 2 was an error in finding that the representations were sufficiently clear and unequivocal to be actionable. Ground 3 identified ten aspects of the evidence which, so it was said, the primary judge “failed adequately or at all” to take into account. Ground 4 was that the representations found by the primary judge had not been pleaded.

2. [96]

   Grounds 1 and 3 require a review of the primary judge’s analysis of the evidence, bearing in mind the deference to be given to findings likely to have been informed by his advantage of sitting at first instance. The most convenient course will be to summarise that evidence, and in the course of doing so identify various criticisms of it.

3. [97]

   Ground 2 involves a pure question of law. However, it is a question which, as will be seen, neither side fully engaged with. If it were determinative of the appeal, I would have been minded to invite further submissions, because it is of general importance. As it is not, it is unnecessary to do so.

4. [98]

   Ground 4 was correctly stated in Scott’s submissions in reply to be “barely touched upon”. The position remained unchanged following receipt of the appellants’ submissions in reply and oral submissions. It was not separately pressed. No basis has been made out for challenging the correctness of the primary judge’s conscious departure from the pleadings at [344]-[346], and no more need be said of it.

5. [99]

   The primary judge found in Scott’s favour that the representations were made. The way in which that finding was made is of some importance, including having regard to the appellants’ submission that the finding failed to differentiate the different circumstances which applied from time to time, and Scott’s submission that the arguments in this Court merely rehearsed those which had been made and were rejected by the primary judge.

6. [100]

   Evidence proceeded by affidavits. Scott gave an account of the representations in his main affidavit, which the primary judge summarised at [94]-[106]:

7. [101]

   Separately and later in his affidavit, at paragraphs 165 and 174, Scott said that if he had not been told that he would receive Parkvale and Miltons and the Parkvale Partnership he would not have continued working very hard in the partnership including incurring financial obligations, and instead would have struck off on his own.

8. [102]

   The primary judge addressed whether the representations were made at [328]-[352]. His Honour noted that the level of clarity was less than required by the doctrine of promissory estoppel. He also directed himself as to the general level of caution applied to evidence about oral statements, having regard to the distortions of memory recognised by McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, and especially where the witness stood to benefit from the Court’s acceptance of that witness’s recollection, citing In the matter of Hillsea Pty Ltd [2019] NSWSC 1152 at [16]-[22]. He recorded the daughters’ submissions that the representations had not been made, and that Scott had over time come to a view that he deserved the farms. They made the following submission, picking up the frailty and malleability of memory of all witnesses, including honest witnesses doing their best, that Scott’s recollection was a “recent invention”:

9. [103]

   The primary judge recorded the submission that there was no written record of the representations prior to the 2007 wills, and that it was surprising that when those wills were made, Scott did not complain about the condition that he convey Fairfield to Craig as a breach of the earlier promises.

10. [104]

    His Honour thereafter reasoned as follows. Neil believed strongly that his children should know his testamentary intentions. In the wrangling between 2015 and 2017, Neil’s intention that Scott should receive Parkvale or most of Parkvale and Miltons was quite constant.

11. [105]

    The primary judge noted at [337] that “Neil’s continuing desire to achieve an outcome whereby Scott would receive at least most of Parkvale plus Miltons suggests, I think, that Neil felt some obligation in that regard”. Precisely why Neil’s decision suggested an obligation (as opposed to the appropriateness of the decision for the son who had been farming the land for most of his life receiving it under the father’s will) was not explained and is not self-evident. Nor was it clear whether the obligation found to have been felt by Neil was a binding obligation enforceable in equity, or a moral obligation sufficient to inform a discretion under the Succession Act (such as is explicit under s 80(2)(b) or as is traditionally used in this context, as Gleeson CJ noted in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [25], and see Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44] and [109]).

12. [106]

    The primary judge added at [338]:

13. [107]

    This reasoning is, with respect, problematic, because Neil’s promises to Craig cut both ways. It may be accepted that evidence that a father who repeatedly makes promises, even inconsistent promises, to his children, is probative of the proposition that promises were made, as the primary judge observed. But the more inconsistent promises are made, the less capable are any of founding an estoppel, at least if the promisees are aware of the promises made to others. Obviously, to the extent that Neil had made inconsistent promises to both sons, and each knew of the promises made to the other, that would substantially detract from either being able reasonably to rely upon it. It is plain in this case that Scott knew that Craig claimed an entitlement to some of the land. The primary judge did not address the countervailing considerations.

14. [108]

    The primary judge stated that Neil cared deeply about the farms, and thought that they should be divided upon principles of “fairness rather than equality”, being a reference to a contemporaneous note by a solicitor concerning the 2007 will explaining that Scott had been farming the land for most of his life.

15. [109]

    Concerning the lack of protest from Scott in relation to the 2007 wills, the primary judge said at [350]:

16. [110]

    That reasoning is sound, insofar as it supports the conclusion that Neil made the representations, although it will be necessary to return to it when dealing with reliance.

17. [111]

    The last point made before the finding was as follows: at [351]:

18. [112]

    The primary judge concluded at [352]:

19. [113]

    The appellants confirmed that they did not seek to overturn the findings of primary fact that Neil’s various statements to Scott were in fact made. Instead, the appellants challenged the conclusion conveyed by those statements and what Scott understood from them. This is apparent from the following exchange:

20. [114]

    The following submissions were directed to the characterisation of what Neil had said. The appellants said that many of the discussions of which Scott gave evidence concerned a particular farm, rather than all three, which was important having regard to the different owners of each. They emphasised the absence of statements that the Partnership, as opposed to the land, would go to Scott. They said that in contrast to the specificity of the pleaded representations, nothing that was said was tied to an inheritance or Neil’s ceasing to be a partner. They said that none of the representations identified any specific time, or whether the transfer of property might be on terms. They pointed to the possibility of Scott buying out his siblings, adding that “there was no representation that Scott would receive the interests of the Deceased for nothing whether by inheritance or indeed at any other time”.

21. [115]

    The appellants said that the representations could not be separated from the will:

22. [116]

    The appellants said that “Scott’s case ignored the involvement of Janet”, who was a joint owner of Parkvale and a tenant in common of Miltons, which would have produced a problem if Neil had predeceased her. They pointed to Scott’s awareness that if his father died first, his estate would pass to Janet, and that people are entitled to change their wills.

23. [117]

    The appellants pointed to the absence of complaint when in 2007 Scott’s entitlement was qualified by an obligation to transfer Fairfield to Craig, and to the fact that when Craig was complaining about promises to him made by Neil being broken, Scott made no reference to Neil’s promises to him. Indeed, the appellants pointed to Scott’s admission that he had not complained to his father. Concerning Scott’s acceptance of the excision of three paddocks from Parkvale, the appellants said this demonstrated “the changing, fluid and uncertain nature of any representations that were made by Neil”. Their written submissions on these grounds concluded:

24. [118]

    Scott emphasised the findings which were said to be “reliability and credit based”, and the absence of any attempt to establish that any were glaringly improbable.

25. [119]

    In response to what was said about the absence of representations concerning the partnership as opposed to the land, Scott noted that some of the representations were in general terms about “the farms” ultimately going to him, which was apt to include the business as well as the land, and that the 2007 wills left the partnership to Scott.

26. [120]

    Scott said that the change in around 2007 (whereby Craig was to receive some land held by Scott) was consistent with Neil’s first will, to the effect that Neil had said that Scott would get the farm and Craig would receive 1,000 acres, consistent with Craig’s evidence that the farms would be divided 2/3 to Scott and 1/3 to him. Scott also pointed to Mr Twomey’s file notes as evidence of the firmness of Neil’s intentions despite pressure from Craig.

27. [121]

    Relying on the concession that there was no challenge to the findings of primary fact that the various words attributed to Neil were in fact said, it was submitted:

28. [122]

    Scott also pointed to Craig’s evidence that the 2016 will did not represent Neil’s testamentary wishes, and that the appellants took steps to hide it from Scott and Mr Twomey. They concluded that:

29. [123]

    Although the primary judge divided the analysis into whether the representations were made, how they were understood by Scott, whether they were relied upon by Scott, reasonably, and to his detriment, and the orders which should be made, the issues do not fall to be determined in hermetically sealed boxes. As much may be seen from the following exchange:

30. [124]

    I shall defer, for the moment, consideration of the appellants’ submissions about whether the representations were sufficiently clear and unequivocal. Assuming the words were said, what did they convey? That involves the following inquiries:

    1. (1)

       What was meant by references to “the representations” in the reasons for judgment of the primary judge?

    2. (2)

       Did the representations amount to an estoppel concerning an inter vivos transfer of land or a testamentary disposition?

    3. (3)

       If the latter, did Scott understand what Neil said to be irrevocable?

31. [125]

    The meaning of “the representations” in the reasons at first instance. The starting point is that the findings of the primary judge were quite precise. His Honour was confronted with an issue of primary fact as to whether “the representations” were made, or instead were the “recent invention” for which the appellants contended at trial. On that issue his Honour found in favour of Scott, and there is no appeal from that finding.

32. [126]

    The finding that the representations were made is couched in terms of the summary of conversation in paragraphs [94]-[106] of his reasons. The critical finding is at [352]:

33. [127]

    That finding was in response to what his Honour recorded as “the defendants’ challenge to Scott’s evidence about the representations” (at [347]). The same language of “Scott’s evidence about the representations” was used in [329]. Much else in the reasons is couched in terms of “the representations”, notably in the framing of issues at [327]:

34. [128]

    Further, after making the finding at [352], his Honour went on to address in a separate section under the heading “How did Scott understand the representations?” at [353]-[358].

35. [129]

    In contrast, when dealing with the pleaded representations in the statement of claim, the primary judge was for the most part careful to refer to “the pleaded representations” (see [342], [343], [344], [345], [346] and [349]). That language permitted the primary judge to avoid the ambiguity and potential confusion flowing from the fact that the pleading itself defined “the representations”.

36. [130]

    Hence the finding in [352] is a finding as to the particular words to which Scott attested having been said at the particular times and in the particular contexts earlier summarised at [94]-[106] of the reasons. It is not to be understood as a finding that the pleaded representations were made.

37. [131]

    Was Scott’s case one based on Neil being prevented from changing his will? As noted above, the second element in the test formulated by the primary judge at [327] was:

38. [132]

    The primary judge answered that question favourably to Scott. But both the question and his Honour’s answer are imprecise as to how, in Scott’s mind, did he assume he would obtain an interest in Parkvale and the balance of Miltons. After Janet’s death in 2012, there were two alternatives: that Scott would obtain an interest in Neil’s lifetime, or after his death pursuant to his will.

39. [133]

    The point is of some significance. At the factual level, if Scott claimed an entitlement to Parkvale and the rest of Miltons after 30 years of representations, in 2016, then that would inform his reaction, when he learnt in September 2016 of the change in Neil’s will, and especially when he was prevented from accessing Parkvale in 2017 and thereafter. It would also inform what Scott said and did at the family meetings concerning Neil’s disposition of his estate.

40. [134]

    At the legal level, it is one thing to create an assumption that a plaintiff has an interest in land then and there, and another thing entirely to create an assumption that the plaintiff will be left land by will. The latter carries with it the possibilities that the promise might predecease and that the promisor might later change his or her will.

41. [135]

    This point was raised during the hearing. I asked whether Scott’s claim was that Neil held Parkvale and his share of Miltons on constructive trust for Scott after (say) 2016, or whether the assumption was merely that assuming Neil predeceased Scott, Scott would receive Parkvale and Miltons in Neil’s will. In response, counsel for the appellants said that Scott’s evidence “has to be understood against the background of it [being] an overall scheme that’s going to be in the wills”.

42. [136]

    The pleaded case drew upon Neil’s 2007 will and added that it was represented to Scott that he would “inherit and/or become the owner of the whole of Parkvale and Miltons”. Thus, the pleaded case was expressed as being one based on a representation as to how Neil would write his will, although it is capable of being broader. It is also true that the pleaded case alleged that the representations had been made from 1988 to 2017. For the first two decades of that period, Neil’s will left his estate to Janet and, if she predeceased him, to the four children in equal shares.

43. [137]

    However, it is also clear that Scott did not press all aspects of his pleaded case. Most importantly, Scott abandoned a claim to Parkvale and Miltons that did not involve him giving up title to Fairfield. That forensic decision was readily understandable. It reflected the terms of Neil’s 2007 wills and the body of evidence concerning Neil’s instructions to that effect prior to his 2016 will.

44. [138]

    Given Scott’s stance at trial, namely, his positive reliance on the 2007 wills and the body of evidence (notably the recollection of Mr Twomey and the documents he prepared) all of which was directed to how Neil would draft his will, it was natural for Scott’s case to be understood as Neil having caused Scott to assume that he would inherit by Neil’s will Parkvale and the balance of Miltons, on condition that he transfer Fairfield to Craig.

45. [139]

    I did not understand Scott to disagree. Consistently with the understanding of the narrowing of Scott’s case summarised above, counsel said in response:

46. [140]

    Counsel for Scott then responded to what had been put on behalf of the appellants to the effect that a promise as to what was to be contained in a will was inherently susceptible of change because testators can change their wills, by pointing to what had been said by Ball J in Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 at [64], a passage concerning when statements of testamentary intention can give rise to estoppels, where Ball J said:

47. [141]

    Scott then submitted that “[t]he representations were not in terms of testamentary intention that could be revocable at any time and no reasonable person would have understood them as such”.

48. [142]

    Counsel were commendably candid in clarifying the way in which Scott’s case at trial shrank from the full ambit of his pleadings. Those concessions were properly made. I conclude that Scott’s case for proprietary estoppel as run at first instance and as defended on appeal was based on representations about Scott’s inheritance by will in the event Neil predeceased him, for the following reasons.

    1. (1)

       First, the particular statements relied upon are to the effect that Parkvale and Miltons would “ultimately” or “at the end of the day” or “one day” be Scott’s; the language tends to connote that the assumption is as to what Scott would inherit after Neil’s death.

    2. (2)

       Moreover, the actual wills made in 2007 whereby Scott would receive Parkvale and Miltons, on condition that he gave up Fairfield and the various attempts of Neil to secure agreement within the family as to the inheritance of his estate, were highly significant in Scott’s case.

    3. (3)

       If the case was not limited to a proprietary estoppel as to a testamentary intention, it is difficult to see how Scott could advance a case which gave such prominence to the family discussions concerning Neil’s wills but yet contended that Scott enjoyed beneficial ownership of Parkvale and Miltons in Neil’s lifetime.

49. [143]

    How did Scott understand Neil’s representations? The critical reasoning of the primary judge as to how Scott understood what Neil said is at [357]-[358], which respond to passages from Scott’s cross-examination relied on by the appellants:

50. [144]

    That reasoning is, with respect, problematic. Once the case is reduced to one based on promises as to Neil’s will, it is necessary to bring to account the fact that people are free to change their wills from time to time. This is the point to which the principles stated by Ball J in Wantagong Farms Pty Ltd apply.

51. [145]

    The position was addressed more elaborately by Young CJ in Eq in Barnes v Alderton [2008] NSWSC 107; 13 BPR 25,281 at [51]-[54] and [58] (passages cited by Ball J):

52. [146]

    Those principles were restated by Ward CJ in Eq in Bassett v Cameron [2021] NSWSC 207 at [415] (an appeal was allowed from other aspects of this litigation (see Bassett v Bassett [2021] NSWCA 320), but no appeal was brought from her Honour’s rejection of the claimed proprietary estoppel):

53. [147]

    The primary judge fell short of explicitly addressing whether Scott reasonably understood Neil’s representations as to his will to be an irrevocable promise. In part that may be because the formulation of the elements of the proprietary estoppel was less precise than it might have been, framed as it was in terms of whether the representations induced “an assumption in Scott’s mind as to an interest in the properties”. In part that may reflect the way in which Scott’s claim narrowed during closing addresses. In part it may be that the principles summarised in Barnes v Alderton, Wantagong Farms Pty Ltd and Bassett v Cameron seem not to have been mentioned by either side to his Honour.

54. [148]

    The primary judge made a more general finding that “Neil’s statements quite reasonably induced an assumption in Scott’s mind that he could rely on what his father told him would happen when his parents died, namely that he would inherit Parkvale and the portion of Miltons which he did not already own”: at [358]. Should that be understood as cohering with the tests to which the primary judge was not taken, such that Scott understood there to have been an irrevocable promise made to him? In addressing that question it is important to be conscious that the deference to which a trial judge is entitled is not merely confined to findings informed by, or likely to have been informed by, the impressions given by witnesses being cross-examined. As Lord Hoffmann said in Biogen Inc v Medeva plc [1997] RPC 1 at 45:

55. [149]

    The deference in that passage has been approved in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Rep 81-578 at [137], and in the joint judgments of this Court in Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [111] and [116] and Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [65]. More recently, the “inherent incompleteness of any exposition of reasons for factual findings” was noted by McCallum JA, with the agreement of Basten and Payne JJA, in Sica v Brophy [2020] NSWCA 181 at [65].

56. [150]

    Bearing in mind that a prominent aspect of the trial was Neil’s changing wills in 2007, 2016 and 2018, and a prominent aspect of Christina’s and Tracey’s submissions at trial was the possibility that Neil might change his will, I think this is a case where the incompleteness and consequential appellate deference to which Lord Hoffmann referred are applicable. The primary judge’s finding that it was reasonable for Scott to have relied on what Neil said as to his will should be regarded as a conclusion that it was understood to be irrevocable. That conclusion is informed by the advantage enjoyed by the primary judge who saw Scott give evidence over parts of three days. It is a “matter of degree” on a factual question which involved an assessment of Scott’s evidence and its testing in cross-examination. It is all too easy for criticisms on appeal to be made of findings of how what Neil said was to be understood by reference to distinctions which seem not to have been given attention at trial. In short, I do not think that the appellants have demonstrated that it is a finding with which this Court can interfere.

57. [151]

    The primary judge said at [328]:

58. [152]

    The reference to Kramer v Stone reflected what had been in Scott’s written opening and closing submissions (in both cases, paragraph 12). The decision is that of this Court; the primary judge’s principal judgment preceded judgment from the High Court dismissing an appeal in Kramer v Stone [2024] HCA 48; 99 ALJR 126. The passage in this Court’s judgment in Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 at [84] cited by the primary judge was:

59. [153]

    However, the joint majority judgment of the High Court in Kramer v Stone had said at [36]-[37]:

60. [154]

    There is a question whether the High Court has altered the law to which it will be necessary to return.

61. [155]

    In this Court, the appellants commenced with the proposition that “[t]he High Court in Kramer v Stone reaffirmed that there must be a clear and unequivocal promise made by the party estopped to the party relying on the promise” (written submissions, paragraph 10). That submission fell short of stating that what the primary judge had said at [328] was wrong. In response, Scott pointed to what was said at [328] as correct, and noted that “[t]he Appellants do not challenge the Primary Judge’s statement of the law on this matter” (written submissions paragraphs 1 and 2). The position remained unaltered by the submissions in reply. In oral submissions, Scott confirmed the correctness of what the primary judge had said at [328], and while the appellants did refer to Kramer v Stone in the High Court, it was in relation to detriment, not clarity of representation.

62. [156]

    The parties’ attitude to this threshold question of law has informed the approach taken in these reasons.

63. [157]

    The passage of the joint judgment of the majority of the High Court in Kramer v Stone cited passages from Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11, Foran v Wight (1989) 168 CLR 385; [1989] HCA 51 and Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7. The passages in those decisions concerned promissory estoppel.

64. [158]

    There are some difficulties in accepting that if the case be one of proprietary estoppel by encouragement from a promise, the promise must be clear and unequivocal.

    1. (1)

       First, the joint judgment did not say that it was changing the law.

    2. (2)

       Secondly, no negative reference was made to what Ward P had said at [84], with the agreement of Kirk JA and me, which is reproduced above, and was squarely directed to the point and emphasised the distinction between the degree of clarity required by a representation giving rise to a proprietary estoppel as opposed to a promissory estoppel. If an appeal is dismissed but some statements of principle in the lower court are incorrect, it is usual to say so.

    3. (3)

       Thirdly, there is no negative reference to the many cases which state or hold that in cases of proprietary estoppel the representation need not be so clear and unequivocal as in a case involving promissory estoppel. Without attempting to be exhaustive, and confining attention to the intermediate appellate level, these include Flinn v Flinn [1999] 3 VR 712; [1999] VSCA 109, where Brooking JA with the agreement of Charles and Batt JJA said at [95] “[n]or do I think that the uncertainty of the condition requiring payment of a reasonable sum to Robbie – an uncertainty fatal to the existence of a contract – will prevent the equity from arising”. In Harrison v Harrison [2013] VSCA 170, Garde AJA with the agreement of Harper and Tate JJA said at [81] “[e]ven though the promises may have varied from time to time, or were lacking in specificity as to the nature of the interest to be conferred, or extended on some occasions to the creation of trusts for the grandchildren, as well as the respondents, it is well established that proprietary estoppel may apply even though the promises lack sufficient certainty to be an enforceable contract, or even a loose arrangement”. In Slade v Brose [2024] NSWCA 197 at [202], Ward P said with the agreement of White and Stern JJA that “the requirement of certainty for a representation or promise in a proprietary estoppel claim is less stringent than in other kinds of estoppel”.

    4. (4)

       Fourthly, there is no negative reference to earlier statements of the High Court on this issue, by Keane and Nettle JJ. In Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 at [215]-[216], Nettle J said:

    5. (5)

       Similarly, Keane J’s judgment proceeded on the basis at [147] that there was a relaxed level of certainty applicable to proprietary estoppel. His Honour then said at [149]:

    6. (6)

       “Sufficiently clear” is distinct from an assurance or representation which is “clear and unequivocal”.

    7. (7)

       Fifthly, the joint judgment of French CJ, Kiefel and Bell JJ in Crown Melbourne Ltd touched on the issue at [36], where they noted “[i]t appears that the tenants sought to characterise the estoppel as proprietary because they considered that a less stringent view is taken for the test for certainty of the representation in cases dealing with promises with respect to interests in land than is the case with respect to other interests”. This was dismissed on the basis that it had “never been the tenants’ case that the estoppel in question was proprietary rather than promissory”: at [38]. But their Honours refrained from saying that it had been misconceived to consider that a less stringent approach applied to proprietary estoppels. That falls short of endorsing the proposition that a less stringent view is taken in proprietary estoppel, but it is suggestive of that.

    8. (8)

       The remaining members of the High Court (Gageler and Gordon JJ) did not address estoppel. The result is that in Crown Melbourne Ltd the reasons of five members of the Court – being all the members of the Court who addressed estoppel – are consistent with a less stringent requirement of certainty for proprietary estoppel, and at least two of the five gave considered explanations for why that was so. Yet none of the passages from Crown Melbourne Ltd summarised above was mentioned in Kramer v Stone.

    9. (9)

       Finally, if what the appellants attribute to Kramer v Stone is accepted, there would be incoherence. For there surely cannot be an Alsatia where conduct which amounts to more than acquiescence but less than a clear and unequivocal representation falls outside the scope of proprietary estoppel. What matters in a case of proprietary estoppel is that the defendant knows that the plaintiff is labouring under a belief induced by something the defendant did or said. If what was done or said was a little ambiguous, but was treated by the plaintiff as amounting to a promise that he or she would obtain an interest in the land, and the plaintiff relies on it to his or her detriment, all to the knowledge of the defendant, the defendant may be bound.

65. [159]

    It may be that I am seeking to read too much into this. The majority judgment characterised the relevant species of estoppel as “encouragement from a promise” (emphasis added). That may indicate that the majority in Kramer v Stone was alive to other forms of proprietary estoppel by encouragement, such as where, for example, expectation does not flow solely from the promise (as inducement) but rather from a prior belief that is “encouraged” by later representations, or where the representation is in part based on conduct rather than a promise. On this approach, which confines promises to cases capable of giving rise to an estoppel by representation, being a subset of the proprietary estoppel by encouragement, there is no inconsistency with the weight of appellate opinion summarised above.

66. [160]

    But it is not necessary to pursue this. The point was noted by Scott at the same time as observing that the appellants did not challenge the formulation of principle by the primary judge reproduced above. The appellants did not return to this. Accordingly, it cannot be said that there was anything like full argument on the point. None of the matters mentioned above was addressed by either side. This Court’s orders are not affected by the outcome of ground 2, and if this Court expressed a view on the issue, it would have an impact on other hearings where the issue may be dispositive. In those circumstances, it is best not to decide the ground, in accordance with the principles of judicial economy recently confirmed in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [7]-[8]; see also Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [36]-[40].

Reliance (grounds 5-9)

1. [161]

   The primary judge addressed Scott’s reliance on the representations at [359]-[365]. His Honour accepted that Scott had to establish that he acted in reliance on the assumption and that his reliance was reasonable, that he bore the onus, that the induced assumption did not need to be the sole cause of the conduct which amounted to reliance, and that he needed to demonstrate that he would have acted differently but for the assumption: at [359]-[361]. No issue was taken with any of those principles.

2. [162]

   The entirety of the remaining reasoning on this element of Scott’s claim was at [362]-[365], as follows:

3. [163]

   Ground 5 challenged the conclusion of reliance, ground 6 maintained that the primary judge did not properly apply the principle that reliance must be directly and reasonably induced by a clear promise, ground 7 asserted that the primary judge erred by failing to consider the issue of reliance by each of the established representations, ground 8 reiterated many of the matters relied on in ground 3 and ground 9 alleged that the primary judge ought to have found that Scott engaged in farming activities on the land pursuant to the partnership agreement and “a hope, short of an actual expectation, that on his parents’ death he would receive a substantial interest in those farms”.

4. [164]

   First, the appellants submitted that Scott’s evidence was self-serving and hypothetical and should be approached with caution.

5. [165]

   Secondly, the appellants observed that the evidence cited by the primary judge at [362] was taken out of context. What in fact Scott had said at [174] of his main affidavit was:

6. [166]

   The appellants pointed to two ways in which the primary judge had altered the context of this evidence. One was that Scott’s evidence made sense on the basis that Scott had control and ownership of the farming properties and the partnership which operated the business. However, Scott’s claimed estoppel did not extend to the partnership, of which he was only a 1/3 (or 1/2) owner. The appellants said that “[t]here was no evidence of Scott’s reliance on representations about the farming properties in the context where he would not receive all of the Partnership”, without which he could not carry on as the next generation farming those properties. The submissions asked, rhetorically, “[w]hy would he rely upon representations about owning the farming properties unless he could expect to own the Partnership?” and added that the answer was not self-evident and that the more likely answer is that he would not have done so.

7. [167]

   A separate distinction is that Scott’s testimonial evidence was couched in terms of him gaining control and ownership of the lands on which the Parkvale Partnership conducted its farming operations. That included Fairfield. But on Scott’s case, he had assumed he would keep Fairfield as well as obtaining Parkvale and the share of Miltons owned by his parents, until 2007, after which the assumption he laboured under altered.

8. [168]

   Thirdly, the appellants said that while the purchase of Fairfield as an act of reliance was found by the primary judge at [362], this occurred in 1999, and that no part of Scott’s affidavit (which was the source of the findings of fact) pointed to anything that was said by Neil concerning his eventual ownership of Parkvale prior to 1999.

9. [169]

   Fourthly, the appellants said that given there had been such a significant change in the assumption after 2007 (when Fairfield was to be transferred to Craig), it was “difficult to see how there could be continued reliance upon representations made prior to that time”. They said that reliance must be assessed afresh after 2007.

10. [170]

    Fifthly, the appellants criticised the reliance by the primary judge upon the purchase by Scott of Fairfield as “[making] sense as a viable purchase if combined with adjoining partnership properties”, saying that it was undermined by the facts that:

11. [171]

    Sixthly, the appellants said that inherent in the primary judge’s findings on reliance was the proposition that “without actionable representations that he would get all the farming properties, Scott would (from the outset and continuing over several decades) have left the farming business, presumably terminating the Partnership and thereby forcing the sale (after its purchase) of Miltons and crystallising the partners’ debts, leaving his elderly parents with Parkvale and him with Fairfield (after its purchase) but with no operating farming business”. That was said to be unlikely, noting that Scott accepted that if he wanted to leave the Partnership, he would have needed to come to an arrangement with his parents to untangle his liability in respect of Parkvale, Miltons, Fairfield and his personal guarantees, but that he did not have the financial means to untangle his affairs without being able to work in the Partnership either in the short or the long term; and he had a responsibility to maintain and look after the debt and the farms.

12. [172]

    The appellants submitted:

13. [173]

    Seventhly, the appellants said that after 2007, on Scott’s case he was to receive all (or all save three paddocks) of Parkvale and the balance of Miltons, but subject to giving up Fairfield. They submitted that “[t]here was no evidence that having Parkvale and the remaining 2/3 (or 1/2) of Miltons was significantly more advantageous than having Fairfield and a 1/3 interest in Miltons in circumstances where Scott was only ever a 1/3 (or 1/2 owner) of the Partnership and thus the farming business”, and that this further undermined any finding of reliance, which in any event was not addressed by reference to those alternative scenarios.

14. [174]

    Finally, the appellants submitted that the primary judge failed to have regard to the following matters:

15. [175]

    The appellants submitted that in light of these facts, the primary judge ought to have found that Scott had not established factual reliance, or alternatively that a reasonable person in Neil’s position would not have expected or intended that Scott would rely upon any representations.

16. [176]

    Scott reiterated that the findings of reliance were influenced, or likely influenced, by Scott’s demeanour when giving evidence. In response to what had been said by the appellants about the difficulties with continuing to rely on earlier representations after 2007 when the assumption changed, Scott said that “the Appellants at [41] appear to be promoting … the insupportable contention that as every time an even slightly differently-phrased representation is made then all previous representations are set completely at naught”.

17. [177]

    In relation to the partnership, Scott said that it was “clear from the terms of Neil’s oral representations, and the terms of the February and October 2007 Wills, that Neil and Scott envisaged that Scott would own the Partnership to operate the farming business on Parkvale and Miltons once Neil and Janet passed on”.

18. [178]

    In response to the submission that there was no representation that Scott would receive Parkvale prior to his acquiring Fairfield, Scott submitted that “Scott’s evidence is that Neil consistently represented to him, from 1989 to 2017, that Scott would receive Parkvale and Miltons, and be the next generation to run the Partnership on those properties”. Those statements, read naturally, extended to the partnership.

19. [179]

    Scott also submitted that the provision to him “under the October 2007 Wills was not significantly different to Neil’s representations to Scott beforehand, or to the numerous discussions documented by Mr Twomey from 2015 to 2017”. Scott stressed the finding by the primary judge that he did not regard the obligation to transfer Fairfield free of debt as an unreasonable departure.

20. [180]

    Finally, Scott submitted that there was no basis to think that the primary judge did not take the matters into account, to some of which his Honour expressly had regard.

21. [181]

    Once again, it is necessary to bear firmly in mind, as Scott emphasised, that the primary judge saw the witnesses being cross-examined. Evidently he formed a favourable view of the reliability of Scott’s evidence, and an unfavourable view of the evidence of Christina and Tracey. No basis has been put forward to overturn any finding of primary fact.

22. [182]

    Some of the appellants’ submissions go too far. As Scott submits, many of the matters complained of in the appellants’ final submission (where 15 points are identified to which the primary judge is said to have failed to have regard) were matters to which the primary judge explicitly had regard. One was Scott’s work as a miner during the drought (see at [130]-[140]). Another was the apprehended violence order preventing Scott from working on Parkvale, and without access to Parkvale it made no sense for him to work on Fairfield, of which the primary judge was evidently conscious.

23. [183]

    Scott claimed in his written submissions that ground 6 was not developed and should be taken to have been abandoned. That was disputed in the appellants’ written submissions in reply, but no separate submissions were directed to it. In part, this ground overlaps with ground 2 and for the same reasons, is best left unresolved.

24. [184]

    Contrary to ground 8, I do not think it is necessary to establish reliance “by reference to each of the established representations”. Scott’s case was that numerous statements made by Neil over many years amounted to conduct which induced in him an assumption. It is true (and this much Scott readily conceded in paragraph 36 of his written submissions) that there can only be reliance based on what has already happened. But it is going too far to insist that there must be separate, individualised reliance on every representation made by Neil, as opposed to the pleaded representations which emerge from Neil’s individual statements.

25. [185]

    Other aspects of the appellants’ submissions are technically correct, but do not carry any great weight. One example, which was more prominent in oral rather than written submissions, was the absence of any case of assumptions brought about by Janet. The appellants made the fair point that Parkvale was owned by Neil and Janet as joint tenants, and thus in the event that Neil predeceased his wife (a far from improbable scenario – she was two years younger than him) it would not without more be to the point that Neil had led Scott to believe that Parkvale would some day be his. But the pleading was drafted after both Janet and Neil had died, when it was known that Neil survived his wife and was the sole beneficiary of her deceased estate, and so to the extent that Janet had herself made representations, or adopted those made by Neil, that was not to the point as things turned out. Another way of putting this is that there was no occasion to plead facts giving rise to an estoppel which would only have been material if Neil had predeceased Janet, something which was known not to have occurred when proceedings were commenced in 2021. This submission is based on a potential gap in a plaintiff’s cause of action which, with the benefit of hindsight, is known never to have eventuated.

26. [186]

    I am inclined to think that the appellants’ insistence on the distinction between the land and the partnership which operated the business overplayed its significance. For one thing, it is natural for statements to the effect that “all this will some day be yours” when referring to a working farm to be referring, and to be understood as referring, not merely to the real property, but to the agricultural activities being conducted on the real property. For another, at least according to the accounts, the main assets were land (including the fixtures such as the sheds and silos and other improvements), as opposed to partnership assets which were not land. A third consideration is that the oral representations upon which Scott relied were conversations between father and son. What was said by one and assumed by the other, and whether the latter’s reliance was reasonable and acted upon to his detriment, is not to be judged unduly technically, as if there were an exchange between lawyers acting for parties to a transaction astute to distinguish real and personal property. And insofar as those conversations conveyed not merely ownership, but that Scott would ultimately farm the land, that would reasonably be understood to carry with it not just ownership of the land but also the entitlements of the partnership to farm the land. Finally, insofar as Scott’s case was based on the 2007 will, that left Neil’s interest in the partnership to Scott.

27. [187]

    Nor is there any real force in the appellants’ seventh submission, concerning the lack of evidence that Parkvale and the remaining share of Miltons was significantly more advantageous than Fairfield and a share of Miltons. There was a deal of evidence that Fairfield was not viable as a free-standing farming operation, including because of a lack of water. Parkvale is double the size of Fairfield and Miltons put together, and the evidence established that most of the valuable improvements were located on Parkvale. Parkvale was farmed separately by Neil and Janet before Miltons or Fairfield were acquired. The valuations annexed to the grant of probate may not be reliable, but they make it clear that the most valuable farm, by far, was Parkvale.

28. [188]

    On the other hand, some of Scott’s submissions overreach. The appellants made no submission that “an even slightly differently-phrased representation” has the effect that “all previous representations are set completely at naught”. The difference between receiving Parkvale and the remaining share of Miltons whilst keeping Fairfield, and receiving Parkvale and the remaining share of Miltons on condition that Fairfield be given debt-free to Craig, is significant. True it is that the primary judge found that Scott accepted this change, but that does not mean that it is not significant. The debt was hundreds of thousands of dollars and Fairfield was in excess of 600 acres.

29. [189]

    But I have concluded that some of the appellants’ points are sound, and are sufficient to establish grounds 5 and 9. Scott observed that these were challenges to findings of fact. On that point he is correct. But that does not stand in the way of this Court conducting an appeal by way of rehearing from intervening, in accordance with the principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, albeit making allowance for the advantages enjoyed by the primary judge. (I did not understand the standard applicable to this Court’s review to be in dispute, but in any event the foregoing accords with what was held in Soulos v Pagones [2023] NSWCA 243; 416 ALR 181 at [320]-[326].)

30. [190]

    The primary judge relied on two things in order to make a finding of reliance: the purchase by Scott of Fairfield and a one third interest in Miltons, and Scott’s failure to extricate himself from the farming partnership thereafter.

31. [191]

    The cogency of the reasoning of the primary judge is to be assessed according to his Honour’s findings, not the evidence available to his Honour (noting there was no notice of contention). It is not to the point to say that there was evidence available at trial which could supplement the more limited findings of fact. The passages to which Scott pointed (in footnote 50 of his written submissions) go beyond the findings made by the primary judge. If Scott sought to defend the decision based on findings not made by the primary judge, it was incumbent upon him to file a notice of contention and identify the additional findings he sought. Scott’s submission does not dispute, nor could he dispute, that the findings of reliance made by the primary judge mostly predate the representations.

32. [192]

    As explained when dealing with grounds 1 and 3 above, the primary judge was careful to identify the representations he relied upon, in light of the large issue put forward by his sisters that it was a recent invention. The findings made at [352] clearly refer to what his Honour summarised at [94]-[106] which are reproduced above. The primary judge referred to his summary of that evidence in terms, at [329] and [343].

33. [193]

    The primary judge said at [365]:

34. [194]

    However, the representations which his Honour found had been made, which were summarised at [94]-[106], do not refer to anything said before 1999, save in the general introductory terms of [96], concerning Parkvale. How then can Scott’s acquisition of Fairfield in 1999 amount to reliance on an assumption that he would ultimately be given Parkvale? Of course, Scott may well have expected when he acquired Fairfield to inherit Parkvale if he survived his parents; he was the eldest son and was working the lands on which Parkvale was the main homestead. But that is different from saying that he relied on an assumption engendered by words or conduct of Neil.

35. [195]

    Going back further in time, Scott entered into the Parkvale Pastoral Co Partnership in 1989, and as one of the three partners acquired Miltons five years later as a tenant in common. Absent from the findings made by the primary judge is any finding of a representation prior to 1989. The first finding is at [98], namely that “[i]n 1994 when Miltons was purchased, Scott says that Neil said to him words to the effect: ‘[Miltons] is a long-term investment that will ultimately belong to you in the future’”. The statement that the land “will ultimately belong to you in the future” is not entirely clear, because in fact from the moment it was acquired, Scott was a co-owner. The decision to purchase was a decision of the partners, and Miltons was purchased with partnership funds and a principal and interest loan from the Commonwealth Bank to the partners. It seems a little unreal to reason, from the sparse terms of Scott’s evidence as found by the primary judge, that one of three partners relied on the statement made by Neil to participate in the decision to become a co-owner of the land.

36. [196]

    This goes to the heart of Scott’s case. Scott did not allege that any promise from Neil preceded his joining the partnership. It was the partnership which bought Miltons. It was also the partnership which bought Fairfield (albeit that it was placed in Scott’s name and Scott assumed personal liabilities to the bank) with the partnership paying the deposit and servicing the mortgage. And none of the representations found by the primary judge concerning Parkvale preceded the purchase of Miltons or Fairfield. At most only one of the representations found by the primary judge preceded Scott’s purchase of a one-third interest in Miltons, and I have addressed that representation in the preceding paragraph.

37. [197]

    Moreover, Scott’s case changed significantly after around 2007, when the assumption that Scott would ultimately inherit Parkvale and Miltons was qualified by the obligation to transfer Fairfield to Craig. I would not go so far as to say that it was necessary to consider reliance “afresh”. That is not equity’s approach. But in the course of looking at the position as a whole, or “look[ing] to every connected circumstance that ought to influence [the court’s] determination” (The Juliana (1822) 2 Dods 504 at 522; 165 ER 1560 at 1567, cited in Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 119; [1953] HCA 2) it is necessary to bear in mind that many years after the main representations on which Scott acted, the assumption changed significantly.

38. [198]

    The balance of the findings of reliance turned on a rejection of the appellants’ case that Scott could never afford to leave the farm. That rejection had two aspects: a “doubt” (falling short of a finding) that Scott was never able to leave the farm, and a finding that to the extent that he could not have afforded to leave the farm, that was only because he was heavily financially committed to it, by reason of his purchase of Fairfield and the one-third interest in Miltons.

39. [199]

    The onus rested on Scott to establish reliance. Moreover, it is to be borne in mind that the joint judgment in Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58] emphasised that “[r]eliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact”, and that:

40. [200]

    The primary judge did not find that there was any time after 1994 when Scott could have left the partnership, and in this Court, Scott made no attempt to point to evidence suggesting that he could. Scott’s precise financial position over this period was left obscure. But what was certain was that at all times he was personally indebted to Commonwealth Bank and later Rabobank. It seems unrealistic to think that he could, as a practical matter, sell Fairfield in order to pay down his debts – an important feature of his case was that Fairfield was a “white elephant” not capable of supporting a free-standing farming business. Perhaps he could have negotiated with his parents to walk away from the business, but there is nothing to suggest that if that occurred he would walk away with any significant amount of capital. But the more important point is that the foregoing is largely speculative, on an issue where Scott bore the onus, and there are no findings or reasons by the primary judge to support the conclusion.

41. [201]

    The second aspect of his Honour’s finding is that it was the acquisition of Fairfield and an interest in Miltons which tied Scott to the land. If without more Scott had worked for decades on the land on the strength of promises that it would ultimately be his, that would be one thing. But this is not a case like Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 where a child stays on the land working for nothing or for substantially below market rates on the strength of promises of eventual ownership. This is a case where a child stays on the land and works in a farming partnership, but who also obtains legal title to significant parts of the land, doing so (it may readily be inferred) in circumstances where he could not independently acquire sufficient land to farm, and where the majority of the deposit was paid by his parents and the majority of the mortgage payments were met by his parents.

42. [202]

    The primary judge said at [364] that there were many decision-points at which “it would have been open to Scott to seek an exit from the Partnership and to instead devote his considerable ability and resourcefulness in working a farm of his own. It is, I think, unreal to approach Scott’s presence on the farm as being explicable only by the fact that he was in a legal partnership with his parents”. But that leaves unexamined what would on this hypothesis actually occur. It would involve selling or relinquishing his interest in the partnership, selling Fairfield and repaying the debt. The primary judge with respect correctly found that it was the acquisition of Miltons and Fairfield that made it for practical purposes impossible for Scott to discharge the onus he bore that it would have been possible for him to walk away. The critical steps of reliance therefore are his becoming legal co-owner of Miltons and legal owner of Fairfield and becoming personally liable for the debt used to acquire those properties. That occurred in 1995 and 1999, before anything was said, on the judge’s findings, about acquiring Parkvale.

43. [203]

    The strongest aspect of Scott’s case on the representations occurred after 2007, in the wills made that year which left the partnership business to him and Parkvale and Miltons, on terms that Fairfield be transferred to Craig. This was substantially reflected in the orders made at first instance. Although Scott’s entitlement was less than the expectation engendered by many of the earlier statements (which did not involve giving up Fairfield), there was an important difference in that unlike what had occurred over the previous 19 years, this was written, and concrete, and in a context where the words had legal effect. But as the appellants pointed out in writing (albeit in connection with their earlier grounds of appeal), “by the time those wills were executed, Scott had been a member of the Partnership for 18 years”, which “constituted most of the period of his alleged detrimental reliance, and, by reason of it being the early period, by far the most causally potent period of reliance, having regard to its potential to generate detriment”.

44. [204]

    That is sufficient to resolve this issue, but there is force in other submissions made by the appellants. On Scott’s case, he spent more than a decade working on the farm prior to 2007 on the strength of an assumption that he would inherit Parkvale and the balance of Miltons. Then in 2007 that changed, and he acquiesced in a revised assumption that in order to inherit most of that land, he would have to transfer Fairfield and part of Parkvale to Craig. As was prominent at trial, there was no confrontation at that stage between Scott and Neil to the effect that Neil had no right to depart from the assumed state of affairs. This very much suggests that the assumption was not treated by Scott as giving rise to an estoppel.

45. [205]

    I conclude that Scott failed to establish reliance. This is dispositive of the appeal.

Detriment (grounds 10-12)

1. [206]

   These grounds complained that the primary judge had erred in finding that Scott had made “life changing decisions” in reliance on the representations (ground 10), that the primary judge should have found that Scott would have remained farming on his and his parents’ farms irrespective of the representations (ground 11), and that the primary judge erred by failing to consider detriment by reference to each established representation and reliance thereon (ground 12). The first ground overlaps with reliance and has been addressed above. I did not understand submissions to be advanced in relation to ground 12, and if they had been I would reject them; a proprietary estoppel can and often is based on statements and conduct over a period of time, and need not be divided up as this ground envisages. However, the appellants’ submissions (supplied in advance of the appeal) were more broadly expressed. This occurred without opposition from Scott. In what follows, I shall focus upon the submissions exchanged on appeal.

2. [207]

   The primary judge with respect correctly proceeded on the basis that it was necessary to determine whether Scott would have been better off overall if he had not relied on the assumption made by Neil in the first place: Q v E Co [2020] NSWCA 220; 383 ALR 469 at [154]. There Meagher JA said for this Court:

3. [208]

   Meagher JA noted in [155] that:

4. [209]

   All this is consistent with the proposition that proof of detriment “must be approached as part of a broad inquiry as to whether departure from a promise would be unconscionable in all the circumstances”: Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 at [20] (Nettle JA).

5. [210]

   More recently, the High Court has confirmed that detriment may be established by showing a loss of an opportunity which is of real and substantial value, even if it cannot be proven that the opportunity would have realised a benefit, but it remains necessary for the person relying on an estoppel to “prove that the opportunity was lost and that it was something of value”: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445; [2022] HCA 38 at [81].

6. [211]

   It is not entirely clear to me whether a loss of a chance case was run at trial. That was the tenor of part of Scott’s oral submissions in this Court:

7. [212]

   Scott’s counsel emphasised the lean times when the properties were in drought, the fact that Scott did not receive a “free property” but instead obtained not only title but also debt, and made the point that even if Scott had left the farm and struck off on his own, he might expect to receive something under his parents’ wills. He also emphasised the difficulty in seeking to establish detriment, for every possible fork in the road, at which point Scott might have chosen to have left the farming business at Parkvale.

8. [213]

   The primary judge concluded this element of his reasons at [387]:

9. [214]

   As the appellants submitted, that evaluation pays no regard to Scott’s claim under the Succession Act.

10. [215]

    If the assumption induced by the deceased was that the plaintiff would receive land during his lifetime, it is necessary to determine the claim for proprietary estoppel before determining whether an order for family provision should be made, because until the estoppel claim is determined, the extent of the deceased estate will remain unknown. However, this is a case where the assumption founding the estoppel was that Scott would receive all (or most) of Parkvale and the balance of Miltons in Neil’s will assuming father predeceased son. In those circumstances, when assessing whether Scott has incurred detriment in continuing in the partnership over many years, there is force in the appellants’ submission that regard must also be had to his prospects of obtaining via an order for family provision part or all of Parkvale, without which the primary judge characterised Scott’s landholdings as “white elephants”. It is not necessary to reach a firm conclusion, and better not to do so, in light of the fact that despite this being advanced in the appellants’ written submissions, neither Scott’s written nor his oral submissions engaged with it. It is sufficient to say that where as here the proprietary estoppel is as to a testamentary promise, as opposed to an inter vivos entitlement to land, and thus framed in terms of a limitation upon the testator’s testamentary freedom, then it is to say the least arguable that it is subject to the powers conferred by statute to make orders for family provision contrary to the testator’s testamentary freedom.

11. [216]

    It is not necessary for Scott to articulate precisely what he would (counterfactually) have done: Priestley v Priestley [2017] NSWCA 155 at [147]; Q v E Co at [106]. Indeed, caution is justified in assessing such evidence, which is necessarily hypothetical and is likely to be self-serving: Q v E Co at [116]. But it cannot be the case that merely asserting that Scott made a “life-changing decision” would discharge the onus he bears to establish detriment. The evidence suggests that while he personally borrowed to acquire Fairfield in his name, the partnership serviced the loan, and when the facility was refinanced with Rabobank, he obtained the benefit of an interest free loan for the ensuing 15 years, with the partnership again servicing the loan. Scott was a partner, and this is different from acquiring a property “for free”; but it is nonetheless a substantial benefit. It seems likely that Scott’s first interest in land, his share of Miltons, was acquired with the significant assistance of his parents. There were also times when Scott lived at Parkvale.

12. [217]

    For all of the reasons his Honour stated, Parkvale and the one half interest in Miltons owned by the estate has a special value to Scott as owner of Fairfield and the other half of Miltons. It is not possible to reach a conclusion that Scott would likely have been better off if he had left the partnership as a young man without bearing in mind the fact that Scott’s position, aside from any claim of proprietary estoppel, includes ownership of Fairfield, co-ownership of Miltons, an entitlement to Endeavour Place and a fully litigated yet undetermined claim for family provision under the Succession Act.

Relief (grounds 15-20)

1. [218]

   After collecting various uncontroversial principles concerning relief, the primary judge stated at [410]:

2. [219]

   Thereafter, his Honour proceeded to bring to account certain other considerations. Two were relatively straightforward. They were (a) Scott’s entitlement to Endeavour Place under the will, and (b) Miltons being partnership property (despite Neil treating it as property capable of being left to Scott) such that it was necessary to have regard to the trust arising on the dissolution of the partnership.

3. [220]

   Thereafter, his Honour addressed Fairfield as follows at [415]-[419]:

4. [221]

   This with respect discloses error.

5. [222]

   Of course Scott’s pleaded case claimed an entitlement to Parkvale and Miltons, unconditional on his renouncing anything he might receive under Neil’s will. But not only as a term of relief did Scott have to renounce the entirety of his inheritance (Endeavour Place), he also had to repay the debt on Fairfield to the partnership, and transfer Fairfield to Craig. That would be a possible outcome if he and Craig had claims under the Succession Act for orders for family provision. But I fail to see how a claim of proprietary estoppel against Neil or the executors of his estate could generate a result that as a condition of obtaining relief, Scott must give up his own property not to the estate, but to Craig. If the estate is not to be permitted to depart from the assumption resulting from Neil’s representations over many years and Scott’s detrimental reliance upon them, such that a constructive trust of the land is the appropriate remedy, how can it be right for the estate to be bound in part on terms that Scott transfer substantial property to Craig?

6. [223]

   There is another way of seeing this. One could imagine a case where both Scott and Craig brought claims for proprietary estoppel against the estate, on terms that they between them should receive the entirety of the agricultural land, and where as between themselves, Scott should receive Parkvale and Miltons and Craig should receive Fairfield, in light of what Neil had told them both over many years, and one could also imagine that as a term of relief, each brother must renounce any other property under Neil’s will. But Craig made no such claim. Craig was a defendant without a cross-claim.

7. [224]

   Separately from the above, there is an inconsistency in the outcome. Under the orders made by the Court, Scott is entitled to some 90% of Parkvale, on condition that he transfer Fairfield debt free to Craig. But the estate retains the 200 acres comprising paddocks “U”, “AE” and “Q”, which will fall into residuary estate. Evidently the basis for treating those paddocks separately was Neil’s statements made in around 2014-2016 concerning what was needed to make Fairfield viable. Yet the orders do not achieve this. They leave Craig to negotiate with the other residuary beneficiaries concerning those paddocks. Either it is right or wrong in principle to craft orders which will grant Scott appropriate relief commensurate with the revised assumption he held concerning Parkvale and Miltons. But the orders made at first instance impose a condition that Scott give up his own property, and only give to Scott some 90% of Parkvale, but fall short of dealing with paddocks “U”, “AE” and “Q”. His Honour regarded himself as precluded from making orders which would require the executors to hold all of Parkvale on trust for Scott, on condition that he transfer those three paddocks, as well as Fairfield, to Craig. In the second judgment when each of the appellants and Craig sought to reopen the orders on this point, his Honour said at [17]:

8. [225]

   This distinction sits ill with equity’s preference for substance over form. If it were correct in point of principle to require as a condition of relief granted to Scott that he transfer Fairfield debt-free to Craig as the price of obtaining 90% of Parkvale, then it would surely be right to require that the other 10% of Parkvale necessary to make Fairfield in Craig’s hands viable, also be transferred to Craig.

9. [226]

   But the reason this difficulty arises is that the premise is unsound. The primary judge was with respect correct to appreciate that through the guise of proprietary estoppel he was “not at liberty to completely rewrite Neil’s 2018 will”. By the broad statutory power conferred by the Succession Act the Court was empowered to rewrite the will. However, in equity it was not open to impose conditions which would confer a windfall on one of the three defendants, yet that was the practical effect of imposing a condition upon Scott that he transfer Fairfield debt-free to Craig in the absence of any formal claim by Craig.

10. [227]

    As the appellants’ submissions pointed out:

11. [228]

    Scott’s written submissions did not respond to this.

12. [229]

    Orally, the appellants explained the difficulty:

13. [230]

    In response, Scott’s counsel said there was not a lot he wanted to say, “because it’s not really a matter that affects [Scott], whether Craig gets the money, or the estate gets the money”. Craig’s short submissions did not address this. The reality is that there was little if anything that can be said in answer to the appellants’ submission.

14. [231]

    Enough has been said to demonstrate that the orders made at first instance disclose error. In light of what has already been said concerning reliance and detriment, it is neither necessary nor appropriate to consider further what the position would have been had this been the only error disclosed.

Conclusion and orders

1. [232]

   For those reasons, the appeal must be allowed, and the relief ordered consequential upon the conclusion that Scott had made out a case of proprietary estoppel set aside.

2. [233]

   The primary judge did not determine the claims for a common intention constructive trust and a joint endeavour constructive trust: see at [494]. His Honour inquired about this, and was told by Scott’s counsel that it was not necessary to consider common intention constructive trusts if he found in favour of a proprietary estoppel (Tcpt 26.08.24 T817.41), and counsel did not seek to develop any joint endeavour constructive trust. In the absence of a notice of contention it is unnecessary and inappropriate for this Court to consider those alternative bases, to which no submission filed in this Court has been directed.

3. [234]

   The result is that the orders made by the primary judge should be set aside except insofar as they deal with the partnership shares and debt owed by Scott, and the matter remitted for determination of Scott’s claim under the Succession Act. No party contended that this Court could determine that claim.

4. [235]

   Order 6 made on 3 December 2024 dismissed the statement of claim. That order was itself set aside on 2 May 2025 by the primary judge on Scott’s application (see Macaulay v Macaulay (No 2) [2025] NSWSC 421 at [22] and order 4 made on that day) and accordingly it is unnecessary to remake the order so as to preserve the undetermined claim under the Succession Act. Order 2 made on that day was an order that an account of the partnership be taken by the primary judge, being the subject matter of prayer 6 of the statement of claim. It will be a matter for the judge hearing the outstanding issues (being the partnership accounts and Scott’s application for family provision) to determine how best to proceed.

5. [236]

   The notice of appeal proceeded on the basis that prayer 8 of the statement of claim, which sought interest, did not survive the dismissal of the claim for estoppel, despite the undetermined partnership account and application for an order of family provision. Scott made no submission to the contrary. However, it may turn out on the taking of partnership accounts that one partner has retained monies due to the other and an order for interest is appropriate (in making that observation, I am not intending to express a view one way or the other as to whether such an order is appropriate and, if so, how it is to be calculated). But lest there be some argument that the dismissal of prayer 8 of the statement of claim impacts upon either partner’s entitlement to interest, the remitter will extend to that prayer.

6. [237]

   Costs in this Court should follow the event. Craig appeared in this Court and made brief oral submissions, and subsequently filed an appearance. However, in this Court Craig did not provide written submissions, and as presently advised his appearance would not materially have contributed to the appellants’ costs. Instead, Scott assumed the burden of defending the appeal. Accordingly, the appellants should have the benefit of an order that Scott pay their costs of the appeal. If any party contends for a different costs order, application may be made in accordance with UCPR r 36.16. In light of the Calderbank offers which are known to have been made, the costs of the trial cannot be determined at this stage, and the remitter will include the redetermination of those costs.

7. [238]

   I propose these orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Orders 1 and 2 made on 3 December 2024 and orders 6, 7 and 8 made on 2 May 2025 be set aside, and in lieu thereof:

   3. (3)

      The first respondent to pay the appellants’ costs of this appeal.

8. [239]

   MITCHELMORE JA: I agree with Leeming JA.

9. [240]

   FREE JA: I agree with Leeming JA.