Pamplin v Irwin

1. [1]

   BELL CJ: I agree with the reasons of Leeming JA and with the orders his Honour proposes.

2. [2]

   LEEMING JA: Ms Marie Dawn Pamplin and her son Mr Lionel Joseph Pamplin together with six companies controlled by them appeal from orders made in favour of the respondent, Ms Ann Margaret Irwin, who is the surviving partner of the late Adrian Dennis Pamplin, who was Lionel’s older brother and Marie’s older son. Adrian and Ann had no children; Lionel has a daughter Chantelle. Without conveying either disrespect or informality, I shall follow the parties’ usage and refer to the members of the Pamplin family by their given names.

Overview

1. [3]

   There is a substantial amount of detail in the principal judgment given on 9 February 2024 by Henry J after a trial lasting ten days in early 2023 and which occupies some 459 paragraphs: Irwin v Pamplin & Ors (No 4) [2024] NSWSC 73, as well as the subsequent judgment by Parker J on 2 May 2024: Irwin v Pamplin (No 5) [2024] NSWSC 484. The principal issues on appeal are whether the primary judge, despite rejecting the evidence of Marie and Lionel (to which rejection no challenge is made) erred in upholding Ann’s case that most of the assets accumulated by companies controlled by Lionel and (during his life) Adrian should be made the subject of equitable relief – either (in the case of the assets held beneficially by Marie) by way of trust, or (in the case of a discretionary trust of which Marie was the sole director and shareholder of the trustee) by way of estoppel. The review to be undertaken by this Court turns on the documents which were tendered, the testimony of Ann, the inferences to be drawn from the absences in the documentary record and of witnesses who might have been expected to have been called by Marie and Lionel, and the way the trial was conducted.

2. [4]

   By her cross-appeal, Ann seeks orders in addition to those made by the primary judge. The cross-appeal is relatively confined.

3. [5]

   The full working out of the division of assets contemplated by the orders made at first instance has not occurred to date. To the extent that the appeal and cross-appeal require a grant of leave, leave was given without opposition at the commencement of the hearing. Further, it is possible that, as was mentioned at the hearing, there may be disputes about the form of certain of the orders (for example, the meaning of “half of the profits” of the various companies the subject of orders made at first instance). Such submissions as were made during the hearing were, necessarily, given that this appeal has been brought before a final accounting has occurred, divorced from the context of whether particular amounts of money fell within or without the scope of the order. It is not appropriate, in the course of resolving this appeal, to express any definitive views about the application of the Court’s orders independently of any particular dispute, and in advance of a ruling by a judge at first instance.

4. [6]

   It will be necessary to deal with the details in due course. It may assist to bear in mind six points at the outset.

5. [7]

   First, the critical dates are July 2002 when Adrian and Lionel restructured their way of doing business so as to leave minimal assets in their own names, and August 2013 when Adrian died.

6. [8]

   Secondly, the documents are incomplete, and in particular there are very few documents from 2003 and 2004 after assets were transferred to Marie and the trust was established.

7. [9]

   Thirdly, insofar as Ann gave evidence about what was told to her, either by Adrian or Lionel or a third party, it was not excluded as hearsay but instead was admitted as “evidence of the fact of the conversations and the facts contained therein” with the other side being “at liberty to make submissions as to weight”. This was not some ruling which simply emerged during the course of dealing with objections, but a formal, typed statement to which the parties agreed after an adjournment. It has the effect that hearsay evidence was admitted and available to establish the fact of what was said.

8. [10]

   Fourthly, Marie and Lionel were cross-examined about their recollection of events and purpose, but in contrast, as her counsel emphasised in this Court, Ann’s evidence about what she was told and what she heard concerning the purpose of the restructuring was not the subject of any cross-examination. I have reviewed the entirety of her cross-examination, which occupied the majority of the third day of the trial (T68-166) and at no stage was any of her evidence concerning what she heard from Adrian, Lionel, Mr Winter or Mr Burrows challenged.

9. [11]

   Fifthly, Ann was challenged on various other issues, but was found by the primary judge to be a credible and reliable witness.

10. [12]

    Sixthly, it is true, as the appellants submitted, that “[t]he Court will not be referred to one scintilla of direct evidence that Adrian, Lionel and Marie had conversations leading to this alleged found arrangement or understanding”, and that “[t]he primary judge inferred there was an arrangement or understanding from hearsay evidence”. However, the course taken by Mr Hutley SC’s predecessor meant that much indirect evidence of events leading to the arrangement or understanding was unchallenged in cross-examination, and admitted without restriction.

Factual background

1. [13]

   The evidence established that in mid-2002, Adrian and Lionel took deliberate steps, with the aid of professional accounting and legal advice, to restructure their affairs. The result was a new company, Dennis G Pamplin Pty Ltd (“DGP”). (Dennis Pamplin was Marie’s husband and Adrian’s and Lionel’s father, who died in 1996.) The sole shareholder and director of DGP was Marie. DGP was the trustee of a discretionary trust known as the Dennis G Pamplin Family Trust. The “Specified Beneficiaries” were Marie, Adrian and Lionel, and a wide range of other discretionary objects were also identified. Over the subsequent 11 years, substantial assets came to be held as assets of that discretionary trust.

2. [14]

   Adrian died in August 2013 and, following a contested hearing occupying parts or all of nine days before Lindsay J, Ann was granted letters of administration of his intestate estate: Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477. It is now accepted, although it was formerly in contest, that Ann and Adrian were de facto partners, and she is beneficially entitled to the entirety of his deceased estate, pursuant to ss 104(b) and 111 of the Succession Act 2006 (NSW).

3. [15]

   Ann commenced proceedings in 2018, principally in her capacity as administratrix, but also in one respect in her personal capacity, seeking relief by way of express, resulting and constructive trust over some of the companies and some of the real property owned and controlled by Marie as well as an entitlement to half of the assets of the trust.

4. [16]

   The primary judge recorded at [118]-[124] that as young men Adrian and Lionel had been charged with drug-related offences. Adrian served time in prison. Lionel had been the subject of investigation by the New South Wales Crime Commission in 1995, and freezing orders had been obtained against his assets, while Adrian was ordered to attend the Supreme Court for an examination in relation to the joint affairs of him and his brother and any joint property they held. In 1998 the Crime Commission discontinued the proceedings it had brought against Lionel.

5. [17]

   Although it was in issue at trial, the primary judge found at [127], and no attempt was made to impugn the finding on appeal – to the contrary, it was embraced as a central aspect of the case – that:

6. [18]

   Adrian and Lionel were members of the Nomads Motorcycle Club from around 1990. Through it they met Mr Thomas Browne, whom Lionel described as “Metho Tom”, who was a founding member and national president of the Nomads. With him they formed a company ALT Property Developments Pty Ltd in 1992, and each of Adrian, Lionel and Tom were directors from 1992 until 1994. Lionel maintained that the company “was established to acquire and undertake business activities with Tom, but we never agreed on a business to take over and ALT didn’t trade while Tom was a director”. After early 1994, Adrian and Lionel were sole directors and shareholders, each owning half of the issued shares, and in 1997 the name was changed to “Mircon Pty Ltd”, the third appellant. The primary judge recorded at [81] that Ann was told by Adrian that the derivation of Mircon’s name was “Nocrim”. Mircon was also appointed trustee of a discretionary trust for which Adrian and Lionel were specified beneficiaries.

7. [19]

   Between 1996 and 2002 Mircon carried out a series of property developments at Woy Woy, Umina, Kingsgrove and Broken Bay. The scale of its operations at this stage was not disclosed by the evidence. Further property developments were undertaken by Adrian and Lionel in their own names (at Hebersham, Kingswood and Glenmore Park) and with Marie (at North Turramurra). Some of the developments were hampered by caveats lodged by the Crime Commission. The details were outlined by the primary judge at [79]-[100], and are not presently material.

8. [20]

   Both men remained members of the Nomads, and part of Ann’s case involved evidence of very large amounts of cash being divided equally between them each fortnight, which was said to come from a waste-disposal business operated by them in Victoria which Lionel personally supervised each fortnight. It was also said that there was “not a scintilla of evidence” that they were “involved in anything nefarious”. To be clear, no aspect of this appeal turns on whether any aspect of the operations conducted by Adrian and Lionel was lawful or unlawful.

9. [21]

   A large number of contemporaneous documents identified “asset protection” as the reason for running down the existing businesses, and transferring ownership of assets from the name of Lionel and Adrian to their mother in mid-2002. The primary judge found that Lionel and Adrian were shadow directors of DGP thereafter, and no challenge was made to that finding on appeal. The primary judge rejected the defendants’ positive case at trial, which was a case in which “asset protection” was explicitly disavowed. Her Honour made orders which substantially reflected success on behalf of Ann, although by a cross-appeal she seeks further orders in relation to the assets. Importantly, at the forefront of the appellants’ submissions on appeal was the positive submission that the primary judge should have found that the reason for the change of business structure in 2002 was not to give rise to the equitable entitlements recognised by the primary judge, but instead was for a legitimate form of “asset protection”.

10. [22]

    By legitimate “asset protection”, Mr Hutley made it clear that he meant establishing structures whereby neither Adrian nor Lionel had any legal or equitable entitlement to any asset. One way in which this might occur was whether they had merely the hope, as a discretionary object, that their mother might exercise a trustee’s discretion in their favour. This was in contrast with the holding of assets as a “cloak” by an owner with the intent of disguising the true beneficial ownership of others. As it was put orally:

11. [23]

    But this distinction is more blurred than it might appear. Adrian and Lionel continued to be shadow directors of DGP, and in effect controlled its activities and decisions, despite Marie being DGP’s sole director and shareholder. As was acknowledged in argument, based on Ann’s evidence which the primary judge found at [281] to be “credible and compelling”, Adrian and Lionel “were running the show”. Adrian and Lionel had much more than a mere hope that a distribution might be made to them as discretionary objects of the trust; to the contrary, they controlled the trustee.

12. [24]

    At the forefront of the submissions made by Mr Hutley (who had not appeared at trial) was the proposition that in rejecting the defendants’ case at trial, including by seriously adverse findings as to the credit of Marie and Lionel, although those findings fell short of conscious dishonesty, the primary judge had neglected separately to assess whether the positive case propounded by Ann was sufficient to make out any entitlement to equitable relief. This appeal in large measure, therefore, turns upon an evaluation of evidence, which is either documentary or, to the extent it is testimonial, was evidence of events many years ago and therefore subject to the frailties of human memory.

13. [25]

    At the forefront of the submissions made by Mr Condon SC (who had conducted the trial on behalf of Ann) was that the case sought to be run in this Court was not run at trial, and indeed had been disavowed at trial, and that that had consequences for the review by the Court and the discretion to make findings of fact. Thus it was said that “the short point is that Henry J was not asked to make any findings that benign asset protection was the raison d’etre for what occurred … Had her Honour been asked to do that it’s at least conceivable, in our submission likely that her Honour would have made additional factual findings which her Honour didn’t have to make having regard to the way in which the case was presented to the primary judge”.

14. [26]

    It will be clear from the foregoing that it is necessary to summarise many of the facts in a substantial trial. After doing so, many of the grounds of appeal and cross-appeal may be resolved relatively concisely. The evidentiary summary falls into the following categories:

    1. (1)

       The testimonial evidence adduced by Ann;

    2. (2)

       The contemporaneous documents addressing the 2002 restructure;

    3. (3)

       The business records of the DGP Family Trust; and

    4. (4)

       Adrian’s 2013 application for life insurance.

The testimonial evidence adduced by Ann

1. [27]

   There is no point in summarising the testimonial evidence of Marie and Lionel. Both were cross-examined at length. There was no challenge to the rejection by the primary judge of their evidence, including as to the circumstances in which the restructure in 2002 took place, and very little reference was made to any of that evidence in the written or oral submissions on appeal.

2. [28]

   As mentioned, an unusual aspect of this litigation is that Ann gave evidence of statements by Adrian and Lionel and third parties to her concerning the effect of the restructure in 2002, about which she was not cross-examined.

3. [29]

   Ann gave evidence, which was admitted on the basis that it was available for use for all purposes, as follows:

4. [30]

   Ann also said that she heard Adrian and Lionel arguing, giving the following evidence, which once again was admitted on an unlimited basis:

5. [31]

   Ann also called Mr Pasquale (also known as “Peter”) Loccisano, who said that on “no fewer than 20 separate occasions”, Adrian said words to the effect “[a]ll the advice we have received is to put everything in Marie’s name to protect it from the Crime Commission”. Once again, that was admitted and available for use for all purposes. Mr Loccisano had been convicted of conduct which was dishonest and fraudulent, a matter noted by the primary judge at [37], which led to his evidence being viewed with caution.

Contemporaneous documents addressing the 2002 restructure

1. [32]

   In mid-2002, there was discussion between Adrian and Lional and their advisers concerning the structure of their property development operations.

2. [33]

   Evidently there was a conference between Adrian, Lionel and the accountant Mr Steven Lower on 13 May 2002. No notes of that conference were in evidence, but a confirmatory letter the following day, 14 May 2002, was tendered at trial:

3. [34]

   It is clear that not all of the matters recorded in that letter took place. It is true that Dennis G Pamplin Pty Ltd was incorporated two days later, on 16 May 2002, with Marie as its sole director and shareholder, and on 24 May 2002 the DPG Trust was settled, with that company as its trustee. However, contrary to what was recorded under the heading “Mircon Pty Ltd”, on 27 May 2002, Lionel and Adrian resigned as directors of Mircon, and Marie became that company’s sole director.

4. [35]

   On 1 July 2002, Mr Burrows sent a fax to Adrian and Lionel headed, “who does what”, which stated:

5. [36]

   On around 17 July 2002, Lionel and Adrian transferred their Mircon shares to Marie. They had also resigned as directors of A and L Pamplin Earthmoving & Contracting, in June 2002, and transferred their shares in that company to Marie, also on or around 17 July 2002.

6. [37]

   There is nothing to suggest that Marie paid any consideration for the shares transferred to her.

7. [38]

   It is plain enough that some aspects of the proposal in the letter of 14 May 2002, were not implemented, notably, Adrian and Lionel remaining owners and controllers of Mircon. To that extent the transfer of legal ownership and control to Marie was more extensive. However, there was no challenge to the finding that Adrian and Lionel continued as shadow directors of Mircon, and were shadow directors of DGP.

Business records

1. [39]

   A and L Pamplin Earthmoving and Contracting was deregistered in September 2005. The property development activities ensured, some in the name of Marie but in large measure by DGP in its capacity as a trustee. In particular, Marie acquired land at Pitt Town Road, Kenthurst in November 2005.

2. [40]

   Some of the financial statements referred to below have utility because they record the securities obtained by the Bank. In particular, in order to permit DGP as trustee to obtain a loan from the National Australia Bank of up to $970,000, each of Marie, Adrian and Lionel gave personal guarantees in July 2004. Using a loan from that bank of $1,054,000, DGP acquired properties at Macquarie St, Windsor in 2006.

3. [41]

   The documentary records are incomplete. In particular, there are very few records concerning the affairs of the DGP Family Trust in the three years after its creation. There are no documents explaining how assets first became held on trust, nor trust accounts nor trust estates’ tax returns for those years. In the earliest financial statements, Marie appears as a trust creditor in the amount of some $1,000,000.

4. [42]

   There were minutes of board meetings of DGP dated late June in the years 2006-2012 recording distributions in specified amounts to named discretionary objects, invariably distributing “any surplus” to another discretionary object, with the intention of ensuring that the trustee retained no income at the end of the financial year (which would be taxed at the top marginal rate). These documents were prepared by an accountant, and, with one exception, all made limited provision in favour of Chantelle Pamplin (Lionel’s daughter) in a small amount which appears to correspond to the tax-free threshold.

5. [43]

   Relevantly to ground 14 of the appeal and grounds 4 and 5 of the cross-appeal, which challenge the judgment debt of $451,000, these minutes (coupled with Ann’s tax returns) recorded distributions in most years in her favour, as follows:

6. [44]

   The same accountant appears to have prepared tax returns for both the trust estate and Marie and Ann. The accountant was Mr Burrows in 2007 and Mr Aboud in 2013. In all cases, distributions in favour of Ann correspond to amounts of income described as “distribution from trusts” in the supplementary section of Ann’s tax return.

7. [45]

   Comparatively few of Marie’s tax returns were in evidence, but those that were in evidence corresponded with the trustee’s minutes. Thus for example in Marie’s 2007 tax return, the amount of $45,000 appears as income described as “distributions from trusts” and accords with the distributions recorded in DGP’s minutes. The approach taken is consistent with making distributions of taxable income to recipients who have deductions. Thus in that year, Marie made a contribution of $150,000 to the Pamplin Super Fund and the distribution from the trust did not prevent her from achieving a relatively low taxable income of $70,641.

8. [46]

   There were two classes of financial statements of the DGP Family Trust. There were a limited number of conventionally prepared balance sheets and profit and loss statements. All save one were unaudited. The exception was audited by the purportedly “independent” auditor Mr Lower (who continued, so far as the evidence discloses, to be the appointor of the trust). One aspect of the balance sheets is of some significance in determining the extent to which distributions have been made. For, at one stage, it was said, by reference to the 2013 balance sheet, that there were very substantial “unpaid trust distributions” – in the order of $3,000,000 – owed to Marie Pamplin. There are difficulties in reconciling the ordinary meaning of labels with the evident intent of (lawful) tax effective planning that is disclosed from the financial records of this trust. At one stage the appellants flirted with the submission that the trustee’s decision to make a distribution, but not to pay it, would absolve the trustee from its tax obligations, but not require the beneficiary named in the decision to declare the income if she accounted on a cash rather than on an accruals basis. That seems most unlikely, to say the least.

9. [47]

   In any event, it is tolerably plain, as was pointed out at the commencement of the second day of the hearing, that “unpaid trust distributions” does not bear its ordinary meaning.

10. [48]

    This is established by a comparison between the balance sheets at 30 June 2011 and 2012. Each balance sheet comprises three categories of liabilities. Both include “current liabilities” and “non-current liabilities”. The 2011 balance sheet also includes “beneficiaries’ current accounts”. In the 2012 balance sheet, the third category is described as “unpaid trust distributions”. The historical numbers recorded in the 2012 balance sheet under the heading “unpaid trust distributions” correspond precisely to those numbers under the heading “beneficiaries’ current accounts” in the 2011 balance sheet. That is to say, according to the 2011 balance sheet, there were, as liabilities of the trustee, current accounts in favour of the following beneficiaries: Marie ($2,597,884.07), Mircon ($1,394,627.57) and Ann ($200,000). In the 2012 balance sheet, the historical column for 2011 records “unpaid trust distributions” with respect to Marie, Mircon and Ann in precisely the same amounts. The inference is inescapable that the current accounts reflecting indebtedness by the trustee to those three discretionary objects were relabelled in the 2012 financial statements (which approximately coincides with Mr Vincent Aboud becoming the accountant) as “unpaid trust distributions”. The significance of this is that it is unsafe to infer that the missing three years of decisions of the trustee, from 2002 to 2004, immediately after the trust was settled, could give rise to approximately $2,000,000 of distributions to Marie. A much more plausible inference, although it is not necessary to draw it for the purpose of resolving this appeal, is that the missing financial statements record transfers of assets by Marie in her own name to be held by her as trust assets and at the same time for a credit in her favour in what was (at that time) known as the beneficiary current account.

11. [49]

    There were also financial statements which have every appearance of having been prepared by a bank. (I say that because they include a “short form credit memorandum”, said to have been prepared by Mr Craig Barnes, and who is described in the document as a Banker, and in which the group known as Pamplin is described as a “customer”, and because the particular document states “This submission seeks New Market Rate Facility $840,000 into The Peak on Andrew Pty Ltd ATF The Peak Unit Trust”.) The document goes on to record:

12. [50]

    That document states that it was prepared by Mr Barnes on 17 July 2008. Attached to it is a document with a date of 18 July 2008 described as “Mircon Pty Ltd Detailed Financial Report” which provides a variety of ratios apt to be used by banks making lending decisions. Those statements do not have the level of detail as the more conventionally prepared financial statements, and the Court was not in oral submissions taken to any of them in detail. As noted above, their principal significance is that they record securities and guarantees granted by Marie, Lionel and Adrian and the companies they controlled.

Adrian’s life insurance application

1. [51]

   In 2013, Adrian made an application for life insurance. A policy seems never to have issued prior to his death. However, the documents which came into existence, and the communications between Adrian and Ann, bore upon whether Adrian retained an interest in the assets the subject of these proceedings.

2. [52]

   On 12 April 2013, Adrian gave instructions to Mr Winter:

3. [53]

   In May 2013, after making inquiries concerning life insurance, Adrian wrote to Ann:

4. [54]

   On 21 June 2013, Adrian and Lionel met with a financial adviser who recorded the following information on a document signed by both brothers:

5. [55]

   The substance of those instructions was relayed by the adviser to AMP, including stating the following:

6. [56]

   On 19 August, the same adviser applied for life insurance from AIA, and wrote the following in support:

7. [57]

   Although AIA was agreeable to insuring Adrian’s life, he died on 23 or 24 August.

Findings by the primary judge concerning the restructure in 2002

1. [58]

   The primary judge made the following findings at [127]-[132], reflecting the different stance taken by the defendants at trial, and which were not the subject of challenge on appeal:

2. [59]

   Mr Loccisano’s evidence to which her Honour referred in that passage included the following, of a meeting with Adrian, Lionel, the solicitor Ron Winter and the accountant Peter Burrows:

The appeal and cross-appeal

1. [60]

   The principal grounds of appeal are 1, 2 and 3, which challenge the finding that there was an understanding or common assumption which reflected the purpose found by the primary judge summarised above.

2. [61]

   Grounds 6, 7 and 9 challenge alternative findings, by way of common intention or resulting or constructive trust, made by the primary judge. Grounds 10 and 11 challenge the extension of the finding to the assets of the DGP Family Trust. Grounds 13 and 14 deal with the finding that DGP owed Ann a debt of $451,000 based on distributions recorded in its financial statements between 2006 and 2012 which were found not to have been paid to Ann. Grounds 15, 16 and 17 of the appeal were added when the appeal was heard, and were not the subject of written submissions from the appellants. Grounds 4, 5, 8 and 12 were not pressed.

3. [62]

   The cross-appeal has five grounds. They fall into two categories. Grounds 1-3 contend that based on the findings of fact made in her favour, the relief to Ann should have extended more broadly. Grounds 4 and 5 concern the interest to be calculated on the $451,000 found to be owing to Ann; it will be convenient to address these grounds simultaneously with grounds 13 and 14 of the appeal.

4. [63]

   In light of what has already been recorded concerning the documentary and testimonial evidence, many of these grounds can be addressed and resolved concisely.

Grounds 1, 2 and 3

1. [64]

   These grounds were as follows:

2. [65]

   Ann had alleged that there was an understanding or common assumption shared by Adrian, Lionel and Marie that Marie would hold the transferred business and property assets and any future assets generated by ongoing or new business ventures for the benefit of or on trust for the deceased and Lionel in equal shares, which Marie would hand over if asked to do so. Ann maintained that the understanding or common assumption also provided that Adrian and Lionel would act as shadow directors of the companies and keep de facto control of them and the assets, and that they did so: at [7].

3. [66]

   The primary judge elaborated upon the arrangement or understanding at [248]:

4. [67]

   The primary judge was satisfied that the understanding alleged by Ann existed, giving reasons at [271]-[287]. Her reasoning involved the rejection of the evidence of Marie and Lionel (at [272]-[276]), to which no challenge is made. Her Honour then addressed what she stated to be the more significant reasoning supporting her conclusion at [277]:

5. [68]

   Her Honour also relied on the brothers’ equal sharing of financial responsibilities, manifested by giving guarantees in the same amounts and applying for insurance in the same amounts, and documents which referred to the brothers as “key players and decision makers” and Ann’s testimonial evidence at [281]-[282]:

6. [69]

   The primary judge gave less weight to evidence of Marie and Mr Burrows (at [280] and [284]), and to the proposition that Adrian’s statements in 2013 and application for life insurance reflected an appreciation that he had few assets, holding that, “considered objectively, I am not persuaded that those statements are sufficient to outweigh the evidence that overwhelmingly points to an arrangement and a common understanding that they would create an asset protection regime that involved Marie having ownership and control on paper only and the deceased and Lionel maintaining a beneficial interest in the assets that they transferred and that were subsequently acquired on an equal basis”: at [286].

7. [70]

   The findings as to the arrangement or common understanding are findings of fact. Grounds 1-3 challenge those findings of fact. But I see no basis for this Court to interfere.

8. [71]

   There are eight aspects to the arrangement or understanding which was found by the primary judge. Some aspects were at all times uncontroversial. Shares in Mircon and A and L Pamplin Earthmoving and Contracting were in fact transferred to Marie, Adrian and Lionel did in fact resign as directors of those companies, and Marie was appointed as director in their place (cf paragraphs [66](b) and (c)). The timing of those events and the fact that they involved the transfers of shares, and resignation and assumption of the positions as directors, mostly around mid 2002 following accounting advice, is highly suggestive that there was a shared arrangement or understanding between the mother and her sons at least to that extent.

9. [72]

   Secondly, there were aspects of the findings of primary fact made by the primary judge which were not challenged on appeal. Notably, that included the finding that Adrian and Lionel were shadow directors of Mircon and DGP. No real challenge was made to the proposition that Marie was a nominee director of companies with the decisions being made by Adrian and Lionel. Once again, it is not difficult to infer from the facts that (a) in mid 2002 Adrian and Lionel resigned as directors to be replaced by their mother and (b) Adrian and Lionel continued as shadow directors, and that there was a common understanding between the three that that would be the position. Indeed, I did not understand the appellants to place any weight on this aspect of their challenge to the findings by the primary judge.

10. [73]

    Thirdly, the focus of the appellants’ challenge was more nuanced. It turned on the finding that Marie would hold assets on trust for Adrian and Lionel, and the finding that Marie would re-convey to Adrian and Lionel those assets on request or upon the death of Adrian or Lionel. The principal assets in question were the shares in companies, and the parcels of land being developed.

11. [74]

    Even so, I am unpersuaded that a basis has been made out for undermining the finding that the assets in Marie’s own name were held on trust by her for Adrian and Lionel. Added to the objective matters of transfer of shares, creation of trust and assumption by Marie of the position of sole director of the relevant companies, is the testimonial evidence summarised above. Thus her Honour received evidence that Adrian said, at around the time of the restructure, “Everything is in mum’s name but me and Lionel still own the shit” and “It’s still going to be 50/50 split between me and Lionel but mum will own it on paper for the peering eyes”. That evidence was admitted for all purposes. It came through Ann, and she was not cross-examined on it. Ann was cross-examined extensively, and her Honour formed a favourable view of the reliability of her evidence.

12. [75]

    The evaluation of credibility and reliability to be given to the testimonial evidence of each of Ann, Marie and Lionel (and for that matter Messrs Loccisano and Burrows), was a matter for her Honour. Contrary to grounds 1 and 2, there was sufficient evidence to establish the understanding or common assumption substantially as Ann had pleaded.

13. [76]

    The conclusion that there was an intention for the assets to be held on trust for Adrian and Lionel is also consistent with the reality that Adrian and Lionel wanted not to be recorded as legal owners of assets, but still controlled the profitable businesses operated through Marie or entities of which she was nominally the owner and controller.

14. [77]

    No challenge was made to her Honour’s reasons at [394]-[404] concerning the absence of writing and non-compliance with ss 23C and 54A of the Conveyancing Act 1919 (NSW).

15. [78]

    True it is, as was emphasised on appeal, that there is much less evidence for a promise that Marie would reconvey the property on request or in the event of Adrian or Lionel’s death. There is force in this aspect of the appellants’ submissions. Indeed, there is a disconnect between the expression of the assumption or common understanding in [248] and the reasoning in [277], insofar as the latter is silent as to a shared intention or understanding that the assets would be reconveyed in the event of one of the sons’ death. But that reflects the fact that there is an inconsistency in the expression of the assumption or common understanding at [248]. To the extent that Marie is the trustee of an express trust, there is no need to reconvey anything upon death, and indeed all Marie had was a legal title to property in respect of which she was liable to being compelled to convey it, at least to the extent it was severable, at any stage by either son.

16. [79]

    Insofar as the appellants complain that the primary judge did not consider whether what occurred amounted to “legitimate” asset protection, there was no error in not making findings of fact which attended to a case which had been disavowed. Had the primary judge been asked to determine whether what was put in place was a “legitimate” form of asset protection, additional findings may well have been made, and it is not open to the appellants now, having embraced a position which was disavowed at trial, to complain that those findings were not made.

17. [80]

    There is a separate and independent difficulty confronting the appellants’ submissions based on “legitimate” asset protection, at least to the extent that that notion involved Adrian and Lionel having no power of disposition over assets. That is not what occurred. There is an unchallenged finding of fact that Adrian and Lionel were shadow directors or Mircon and DGP. They continued to be the men who were “running the show” (to use their words). As controllers of the companies, they were well removed from persons whose only interest was in the hope that Marie might exercise a power in their favour.

18. [81]

    Ground 3 invokes the difficulties with human memory, when the events are decades old. But her Honour expressly had regard to the frailty of human memory at [32]. Further, as may be seen from the summary above, her Honour placed greater weight on contemporaneous documents than the uncontradicted testimonial evidence of Ann.

19. [82]

    Ground 3 also refers to hearsay evidence, and in other litigation the objection might be well founded. It is possible that this ground and the submissions in support of it were formulated under a misapprehension of the nature of the ruling governing the hearsay evidence given by Ann (and to be fair the summary of that ruling in the appeal books in the margins next to those paragraphs is suggestive of a limiting order which confined the statements to evidence of the fact those statements were made, as opposed to their truth). However, and unusually, in this trial hearsay evidence was admitted into evidence on the basis that it could be used for hearsay purposes. It is not open on appeal to complain that the primary judge used evidence contrary to the hearsay rule, and in circumstances where Ann was not cross-examined on her recollection and was found to be a credible and reliable witness, the weight to be given to that evidence was a matter for her Honour.

Grounds 6, 7 and 9

1. [83]

   These grounds are as follows:

2. [84]

   These grounds challenge findings made in the alternative to the primary case, based on estoppel and express trust. They are immaterial unless the primary case is impugned.

3. [85]

   In any event, the reasons given in answer to grounds 1, 2 and 3 apply. I am unpersuaded that the appellants have established a proper basis for appellate intervention in findings of fact.

Grounds 10 and 11

1. [86]

   These grounds are as follows:

2. [87]

   For the reasons given in response to grounds 1-3, the appellants’ challenge to the finding that there was an understanding or common assumption is rejected. These grounds concern the impact of that finding upon the assets of the DGP Family Trust. So too does an aspect of the cross-appeal.

3. [88]

   On its face, ground 10 contends that the assets of the DGP Family Trust were held in accordance with that understanding or common assumption. If so, then despite the trust having the form of a conventional discretionary trust, DGP would hold as the trustee of a fixed trust. It was put in submissions that that could not be the case, because there was no allegation of sham trust, and it was plain that DGP made distributions to various discretionary objects, including Ann and Chantelle.

4. [89]

   But that is not what the primary judge held. To the contrary, the arrangement or understanding was held to have the consequence that assets such as the shares of Mircon were held on trust by Marie for Adrian and Lionel, but that did not extend to the assets of the DGP Family Trust.

5. [90]

   So much is clear from her Honour’s reasoning at [386]-[387]:

6. [91]

   To that end, her Honour made the following order on 9 February 2024:

7. [92]

   That reasoning, and that order, makes it clear that her Honour was not finding that DGP was the trustee of a fixed trust. Insofar as this ground challenges the extension of the understanding or common intention to the exercise of discretionary powers by the trustee, it overlaps with ground 11 and is addressed below.

8. [93]

   In contrast, ground 11 recognises that the assets were held on discretionary trust, but the trustee’s discretion to distribute income and capital was constrained by order 2 reproduced above.

9. [94]

   There is a problem with the form of that order, probably deriving from its triply negative nature (“restrained from”, “other than” and “cause less than 50%”). However, its evident sense was that the trustee was not permitted to distribute capital or income other than in a way that had at least 50% going to Adrian’s estate. Mr Hutley made it clear that his clients’ challenge was not to the form of the order, but to its substance.

10. [95]

    It was said that the constraint was inconsistent with the terms of the trust, and inconsistent with what the trustee had in fact done for many years, during which substantial distributions had been made to other discretionary objects, notably Marie and Ann as well as to Chantelle. It was said that there was no evidence that Adrian had adopted or acted upon the arrangement or understanding or that he had been encouraged to do so by the trustee. It was said that the order was inconsistent with Adrian’s acknowledgements close to his death, including in connection with the life insurance policy, that he would obtain no benefit from the trust. It was said that a trustee was unable to fetter the exercise of a discretionary power in advance, that if it did so by resolution, that resolution would be unenforceable, and that if it entered into an agreement to do so, the agreement will not be enforced. It was said that the order made by the primary judge “fetters the trustee’s powers and prejudices other discretionary objects of the trust, who were not joined in the proceeding, despite their interest being affected”. The appellants’ submissions concluded:

11. [96]

    Ann submitted that there was no reason why an estoppel could not bind a trustee in circumstances where the beneficiaries of the trust have acted upon the estoppel. She relied on the observations of White J in Public Trustee v Smith [2008] NSWSC 397; 1 ASTLR 488 at [83]-[97] which accepted that an estoppel by convention could bind a trustee of a discretionary trust, as well as on two English decisions on pension trusts: Catchpole v The Trustees of the Alitalia Airlines Pension Scheme [2010] EWHC 1809 (Ch) at [47] and Fielden v Christie-Miller [2015] EWHC 87 (Ch) at [39], and what was said in Lynton Tucker, Nicholas Le Poidevin and James Brightwell, Lewin on Trusts (20th ed) at [29-097] to the effect that if the ingredients of estoppel are present, the principle against fettering trustees’ discretion did not prevent it from binding the trustees. On the facts, Ann submitted that the conclusions were supported by the finding that DGP and the three Specified Beneficiaries (Adrian, Lionel and Marie) were either parties to or knew of and were bound by the understanding or common assumption (J[384]), and indeed that DGP was created as a “key plank” of the asset protection regime. However, Ann said that the estoppel operating against DGP should apply retrospectively as well as prospectively, and that the primary judge erred in failing to make such an order; this was part of grounds 1 and 3 of her cross-appeal.

12. [97]

    It will be seen that there are a number of concepts embedded within this challenge, which I shall endeavour to identify below.

13. [98]

    First, the starting point is the finding of fact that there was an arrangement or common understanding between Marie, Adrian and Lionel. I have rejected the appellants’ challenge in grounds 1, 2 and 3 to that finding of fact.

14. [99]

    Secondly, it is perfectly plain that an important aspect of that arrangement or common understanding was the placing of assets in the new company, DGP, which was to be a trustee of a discretionary trust, and which was nominally to be owned and controlled by Marie but with Adrian and Lionel being its shadow directors. There is no reason to doubt that the arrangement or understanding extended to the assets which were caused to be transferred to DGP as trustee.

15. [100]

    Thirdly, it does not assist the appellants to point to actual determinations by DGP as trustee which are inconsistent with the requirement that at least 50% of distributions be made to Adrian. The reasoning and orders of the primary judge are consistent with Adrian and Lionel jointly determining, as shadow directors of DGP, to make distributions in a different way. Another way of putting this is that although in accordance with the reasons and orders made at first instance Adrian was entitled to insist upon receiving at least 50% of a distribution, nothing precluded him from choosing to deal with that entitlement in a different way. It is, for example, far from improbable that, say, in the financial year ended 30 June 2007, when there was evidently trust income which if it were not distributed would expose DGP to taxation at the top marginal rate, Lionel and Adrian determined that because Marie was making a large voluntary contribution to superannuation that year (of $150,000), it would be tax effective for a relatively large distribution to be made to her. That is not inconsistent with Adrian and his estate having the benefit of the finding and order made by the primary judge.

16. [101]

    Fourthly, test the matter this way. Assuming, as was accepted, that after 2002, Lionel and Adrian continued to “run the show” and engage in profitable property developments the result of which was that assets and income were derived by DGP as trustee of the DGP Family Trust, would Adrian have been entitled to object to, and if necessary enjoin, a decision by Lionel and Marie to distribute the entirety of that trust’s income and capital to Lionel (or for that matter Chantelle)? I see no error in the primary judge concluding that the order made by the primary judge was necessary to prevent DGP exercising a power of distribution unconscionably, given the findings of the arrangement or common understanding. It would be antithetical to the arrangement or common understanding if, say, at the conclusion of a particular property development, Marie and Lionel were to decide over Adrian’s objection to distribute the entirety of the proceeds to Lionel’s nominee.

17. [102]

    Fifthly, the appellants relied on the proposition that a trustee cannot fetter its powers. Their submissions gave emphasis to the entitlement of other discretionary objects of the trust to insist upon the trust’s proper administration. It was submitted that to allow an estoppel to fetter the exercise of a trustee’s dispositive powers would be contrary to the “fundamental principle of equity…that the trustee is bound by the [terms of the] trust instrument”. To this Ann responded that “a trust is a creature of equity, it’s subject to equitable principles” and that, therefore, “there’s no reason as a matter of principle that [the] rule against fettering” precludes the effect of an estoppel.

18. [103]

    I accept Ann’s submission on this point. A trustee may be bound by an estoppel, no different from any other person. White J’s decision in Public Trustee v Smith, on which the primary judge relied, illustrates as much. The same conclusion was reached by Sir William Blackburne in Fielden v Christie-Miller [2015] EWHC 87 (Ch) at [39]:

19. [104]

    The various estoppels at common law and in equity have the effect of constraining what would otherwise be the legal or equitable entitlements of the person estopped. The subject matter of an estoppel is commonly land, or an interest in land such as a lease, or a contractual right, but there is no reason in principle that an estoppel may not extend to a power conferred on a trustee. That view accords with what is expressed in leading texts. The current edition of Lewin on Trusts says at [29-097]:

20. [105]

    C Mitchell, Paul Matthews, Jonathan Harris and Sinead Agnew, Underhill & Hayton Law of Trusts and Trustees (20th ed) says at p 926:

21. [106]

    Moreover, it is important to bear in mind the limited nature of the order made by the primary judge. Its effect was to ensure that no less than 50% of the income or capital of the DGP Family Trust be distributed to Adrian or his estate. That does not preclude the trustee from considering any or all of the discretionary objects. Further it was open to Adrian to consent to a distribution of capital or income which would result in his not receiving at least 50%. In substance, the order made by the primary judge was to give an entitlement to Adrian and his estate to insist that he approve any distribution of income or capital which would result in his not receiving at least 50% of the income or capital distributed. It is true that that constrains the powers of the trustee, but it is considerably removed from the restrictions to which the doctrine of fettering a trustee’s powers is directed. It is clear from what her Honour said at [386] that she was alive to this.

22. [107]

    In circumstances where it is clear that the assumption or common understanding extended to the assets held on trust, and where all three of the Specified Beneficiaries have been found to have shared the assumption or common understanding, and where the assets held on trust are the result of the efforts of two of those Specified Beneficiaries (Adrian and Lionel), I see no error in the primary judge determining that the appropriate orders to vindicate the estoppel were to give an entitlement upon Adrian and his estate to insist that he consent to any distribution of capital or income which would leave him with less than 50%.

23. [108]

    Finally, there is Ann’s cross-appeal. The relief sought is a declaration that DGP as trustee became estopped on 23 August 2013 from exercising powers to distribute income and capital other than so as to cause at least 50% to be received to Adrian’s estate, a declaration that DGP has held since 23 August 2013 one half of the net income of the trust on trust for Adrian, and an order that such income be paid to the estate.

24. [109]

    Ann relied on the arrangement or common understanding that was held to give rise to an estoppel preventing DGP from dealing with the income and capital of the DGP Trust as explained above, and the finding at [386] that it would be “a perverse outcome if parties to an arrangement which … [gave] rise to an express or constructive trust in respect of half of the shares in the trustee company [were] unable to obtain relief to ensure that the trustee does not otherwise deal with its assets in a manner that may defeat the operation of such a trust”. She pointed out that her claim had been that DGP as trustee became, and remained, estopped from acting contrary to the understanding or common assumption as between Marie and Lionel after Adrian’s death. The particular target of this aspect of the cross-appeal was the operations of the landfill business in Victoria, described by the primary judge as “lucrative”, including after Adrian’s death.

25. [110]

    The cross-respondents opposed these grounds. They disputed whether, fairly read, Ann’s claim had extended to the relief now sought. More substantively, they submitted that the prudence of the prospective order made by her Honour could be demonstrated in two ways:

    1. (1)

       there was no evidence at the hearing about what distributions were made by the DGP Trust after Adrian’s death and a retrospective order could have disturbed distributions made in the 2014 to 2023 financial years with unknown consequences for beneficiaries and the DGP Trust; and

    2. (2)

       to make a declaration retrospectively would have the absurd result of impugning the very distributions Ann sought the court below to enforce and the primary judge ordered DGP to pay.

26. [111]

    I shall pass over the analysis in the parties’ submissions of the pleadings, particulars and way the case was presented, and proceed on the basis, favourably to Ann, that it extended to the orders now sought. I do not accept the second aspect of the cross-respondents’ submissions; the trustee’s determinations in favour of Ann pre-dated 2013. However, I agree with the cross-respondents that there is force in the proposition that the order sought has the capacity to affect distributions made in the decade after Adrian’s death. Any discretionary object to whom such a distribution had been made would seem to be directly affected by such an order, for Ann (as administratrix of Adrian’s deceased estate) would prima facie have personal and proprietary rights available against a beneficiary, at least if DGP was unable to make good any loss she could point to following non-compliance with the retrospective order. But Ann did not join them, despite their being necessary parties. Further, there is evident sense in the order being limited in the way that it was. After 2013, Adrian was no longer contributing to the profitable activities conducted by the trustee of the DGP Family Trust. It is one thing for it to be unconscionable for the trustee to make a distribution which excluded Adrian without his consent in respect of a year in which his own efforts had contributed to the income derived by the trustee, and another thing entirely for such a distribution to be made years after his death, in respect of which he had made limited or no contribution to the derivation of income.

27. [112]

    I would not uphold those grounds, either of the appeal or of the cross-appeal.

Grounds 13 and 14

1. [113]

   These grounds are as follows:

2. [114]

   Ground 14 overlaps with grounds 4 and 5 of the cross-appeal, the substance of which is that the interest ordered by the primary judge on the $451,000 should not have been calculated from 8 June 2018 but instead should have been calculated from the date of each distribution.

3. [115]

   These grounds were not the subject of significant oral submissions. Ground 13 complains of error in the finding that trust distributions of $451,000 were not paid by the DGP Family Trust or received by Ann in a manner she authorised and permitted and that the distributions remained outstanding. I would dismiss this ground. Alternatively, ground 14 complains that any entitlement the first respondent had to distributions was net of income tax so that the order to pay $451,000 included a sum representing double recovery. I would uphold this ground.

4. [116]

   The appellants’ written submissions in support of ground 13 acknowledged that Ann said that she did not receive any trust distributions, but contended that telling against this were the facts that she did not work after 1999 and was financially dependent upon Adrian, that money was paid to Adrian who disbursed money to fund her lifestyle, that an application for a home loan made by Ann on 3 December 2008 disclosed that her income came from a trust distribution, as did her tax returns from 2006 until 2012.

5. [117]

   This point is a narrow one. There is no real doubt that no money was transferred from any bank account operated by DGP to any bank account operated by Ann.

6. [118]

   It is also accepted that the various determinations made by the DGP in late June in each year were valid and effective, for that is the premise of this ground. Insofar as a determination was made in favour of Ann, those determinations gave rise to a present entitlement on the part of Ann for the amount so determined.

7. [119]

   It is plain that for these years, the trustee accounted as between itself and various discretionary objects in the form of a running account. Prior to 2012, this was styled “beneficiary current account”. Coinciding with Mr Aboud becoming the trustee’s accountant, the label changed to “unpaid trust distributions”. But however it was labelled, the accounts represented an indebtedness owed by the trustee DGP to Ann.

8. [120]

   At around the time of Adrian’s death, the extant indebtedness of DGP to Ann disappeared. The 30 June 2014 trust balance sheet shows no unpaid trust distributions nor any indebtedness to Ann. That is consistent with the 30 June 2013 balance sheet which refers to an historical unpaid trust distribution of $80,000 to Ann for the year ended 30 June 2012 but nothing in 2013.

9. [121]

   There are similar entries in the earlier financial statements. The balance sheet as at 30 June 2007 does not record any liability to Ann. Nor does the (draft) balance sheet for 30 June 2010. There are financial statements in the intervening years, but they appear to have been prepared by a bank employee and do not identify any amounts owing to nominated beneficiaries. The balance as at 30 June 2011 does appear to show an $80,000 indebtedness, although described as “share of profits” to Ann. It also shows “funds contributed” by Ann of $200,000, which, as it happens is approximately equal to the total distributions made in favour of Ann over the previous five years ($20,000 + $60,000 + $65,000 + $66,000). The 30 June 2012 balance sheet shows the same amounts plus the further loan of $100,000 to Ann.

10. [122]

    Critically, there is no explanation for how the substantial indebtedness to Ann brought about by the earlier determinations was extinguished or discharged. All of these matters could have been explained or, if not explained, explored in cross-examination of Mr Aboud had he been made available.

11. [123]

    Ann gave evidence, which is inherently plausible, that not until the litigation commenced had she seen tax returns or become aware that they included income received by her. The primary judge found, and once again there is no reason to doubt, that Ann provided no instructions in relation to her tax returns, and did not know that they recorded trust distributions. The primary judge did not regard as persuasive the fact that Ann had not sought to amend her tax returns. Drawing upon the absence of Mr Aboud, her Honour considered that it was easier to draw the inference that Ann did not authorise him to lodge the 2012 tax return in her name. The fact that Mr Burrows did not deal with her about that matter provided further support. Her Honour’s ultimate conclusion at [439] was not attacked. It was:

12. [124]

    Her Honour concluded at [442]-[444]:

13. [125]

    No proper basis has been established to impugn the finding made by the primary judge as to Ann’s lack of awareness of payments which for tax and trust accounting purposes had been paid to her. Once it be accepted that Ann was unsophisticated and not knowledgeable about business and financial matters, relying upon Adrian, then the curious fact that she was wholly unaware of her own tax returns is readily reconciled.

14. [126]

    The primary judge appears to have erred in accepting Ann’s submission that no tax returns were signed by her. That is because the tax return for the year ending 30 June 2012, lodged on 5 June 2013, appears to bear her signature, as well as that of Mr Aboud. (To be fair, that submission was not refuted in the lengthy written and oral submissions made at trial by the defendants, nor was the document drawn to her Honour’s attention in a trial where thousands of pages were tendered.) Nonetheless I would not interfere with her Honour’s conclusion that Ann had no knowledge of the contents of her tax returns. Questions of imputed knowledge do not arise in circumstances where on any view there is no explanation for what happened in 2012 or 2013, being an explanation squarely within the appellants’ camp.

15. [127]

    No error has been established by the primary judge’s acceptance of Ann’s evidence that she had never received the trust distributions. Nor was there any error in concluding that in the absence of any explanation by the appellants, that amount remained unpaid.

16. [128]

    However, there is force in the proposition that tax has been paid on distributions said to have been made in favour of Ann. Another way of putting this is that were Ann to receive, today, $451,000 representing the distributions made in her favour in the period 2006-2013, that receipt would prima facie be taxable until and unless Ann were to persuade the Commissioner that tax had already been paid. So far as the documents disclose, tax has been paid, and the consequence is that in order to avoid double counting, and in accordance with ground 14 of the appeal, Ann should receive an after-tax amount. Because the payments were relatively small in each year, the extent of the deduction will not be large.

17. [129]

    Such contemporaneous financial documents as exist point a clear picture to relatively modest distributions being determined in favour of Ann, with her tax returns being prepared accordingly. In this respect, this Court is in no inferior position than was the primary judge. I would infer the modest amounts of tax were paid, not directly by Ann but by other (undocumented) sources. All this is consistent with standing instructions to produce documents consistent with the income of the trust estate being distributed amongst various discretionary objects so as to take advantage of the tax-free threshold and relatively low marginal rates.

18. [130]

    Ann would obtain a double recovery if she were to receive the full $451,000 and were also to recover the amounts of tax paid on her behalf many years ago. I conclude that this ground is made out.

19. [131]

    The primary judge calculated pre-judgment interest on the $451,000 from 8 June 2018, which is when Ann commenced proceedings. An application was made by her under the slip rule to amend the time from which pre-judgment interest ran. It was heard and determined by Parker J (because the primary judge had retired). Parker J refused to amend these orders pursuant to slip rule.

20. [132]

    Ann’s cross-appeal is said not to be brought from his Honour’s decision, but from the decision of the primary judge. Ann said that while s 100 of the Civil Procedure Act confers a discretion as to interest, the discretion is “almost invariably to be allowed when claimed”: Falkner v Bourke (1990) 19 NSWLR 574 at 576. She said that the causes of action arose when the distributions were declared.

21. [133]

    The cross-respondents submitted that while there was a claim for interest, no particulars were supplied despite the requirement to do so in the Rules, and Ann’s opening and closing submissions likewise did not address interest. It follows, so it was said, that the primary judge did not fail to award interest. The cross-respondents also said that Parker J’s decision did not disclose error and because leave was not sought to appeal from that, no relief should issue.

22. [134]

    I do not accept that Ann’s decision not to seek leave to appeal from Parker J’s decision is an obstacle to these grounds. It is one thing to choose not to exercise the discretionary power conferred by the slip rule, and another thing entirely to determine whether, in conducting a real review of the case, error is identified.

23. [135]

    But I also do not accept that Ann is entitled to interest before her demand. It is evident that DGP maintained running accounts with the discretionary objects, and indeed that it did so in respect of Ann. There is nothing to suggest that interest would accrue on that indebtedness, and it would be conventional for the debt to be interest-free and repayable on demand. There is also nothing to suggest that Ann made any demand for repayment of that indebtedness at the time it accrued.

Grounds 15-17

1. [136]

   These grounds are as follows:

2. [137]

   These grounds were added by leave granted at the hearing. Although they accompanied the appellants’ written submissions in reply, these grounds were not developed in those submissions.

3. [138]

   Ann conceded at the commencement of the appeal that ground 15 – a factual error as to the date of the transfer of shares by Marie to DGP in its capacity as trustee recorded in a narrative portion of the reasons – was made out. She also maintained, with respect correctly, that the error as to the transfer of shares was without consequence. I did not understand any submissions to have been advanced by the appellants to the contrary.

4. [139]

   It was also conceded that order 5(a)(ii) made on 9 April 2024 that Marie account to Ann for half of the profits derived by her from her ownership of the shares in A and L Pamplin Earthmoving and Contracting should not have been made; the company was deregistered in 2005. A further complaint was made in oral submissions concerning the ownership of the shares in OSCO (Australia) Pty Ltd but, as Ann submitted in response, her Honour’s finding at [193] appears accurate, and accords with the ASIC search in evidence; in any event it was not suggested that anything turns on any error.

5. [140]

   Ground 16 challenged an order made by Parker J under the slip rule. His Honour did so for reasons explained at [26]-[31] of his judgment Irwin v Pamplin (No 5) [2024] NSWSC 484. His Honour made several changes to the orders, which reflected the fact that property already impressed with the trust found by her Honour to have existed was subsequently transferred to a different entity controlled by Adrian and Lionel, which were unopposed. His Honour said at [30]-[31]:

6. [141]

   I did not understand any submissions to be made in respect of this ground of appeal. I see no error in the exercise of the discretion to correct what on its face appears to be an obvious slip.

7. [142]

   Ground 17 was explicitly consequential. The appellants said that the orders made by Parker J relied on the orders made on 9 February 2024, and should be set aside if there were success on the earlier grounds challenging those orders. Nothing more need be said.

Grounds 1-3 of the cross-appeal

1. [143]

   The remaining aspect of the cross-appeal concerns Ann’s claim that she was entitled to declarations that the assets of Mircon and NMOS were held on trust for Adrian’s estate. No oral submissions were directed to Ann’s cross-appeal. Ann’s written submissions confirmed that no declaration of trust was sought in relation to the “fourth, fifth, seventh or ninth defendants”, which correspond to DGP, Halcrows Investments, The Peak on Andrew Pty Ltd and OSCO (Australia) Pty Ltd.

2. [144]

   In written submissions, Ann said that consistently with the findings at [306] and [308], the fact that Marie became the sole director and shareholder of Mircon and NMOS and The Peak on Andrew in furtherance of the understanding or common assumption justified a finding (and accompanying declarations) that each of those companies held half of their assets and half of the profits derived therefrom on trust for Adrian’s estate. Ann submitted that an inference was available that the knowledge of Marie, Lionel and Adrian about the terms of the understanding or common assumption could be imputed to each of Mircon and NMOS. The terms of the understanding or common assumption found by her Honour were broad enough to cover the assets of Mircon and NMOS. There was no reason for her Honour to distinguish between Marie’s shares in Mircon and NMOS and the assets of those companies. She also said that the findings in [313] supported this relief. Her Honour there stated:

3. [145]

   The cross-respondents said that this contention was “misconceived as it sought to lift the corporate veil when the basis for doing so was not pleaded, the evidence did not address the issue and Ms Irwin’s opening and closing submissions did not provide particulars of how or why the relief should be granted”.

4. [146]

   I do not accept these grounds. The essence of the transactions in mid 2002 was the transfer of ownership and nominal control of Mircon from Lionel and Adrian to Marie, reflected in the transfer of shares in the company and the resignation of the brothers as directors. All that reflects the fact that the subject matter of the trust was the company, not the assets of the company.

Conclusion and orders

1. [147]

   For those reasons, I have concluded that the appeal fails, save in relation to ground 14 in a minor respect, and ground 15 in an immaterial respect. As presently advised, I see no reason for the very limited success achieved by the appellants, in a point not the subject of oral submissions, to affect the discretion as to costs. I have also concluded that the cross-appeal fails.

2. [148]

   It will be necessary for the parties to calculate the lesser amount to which Ann is entitled, being the extent to which tax was incurred by Ann and paid on her behalf in respect of the seven determinations by DGP in the financial years ended 30 June 2006 – 2012. That amount is to be deducted from $451,000, and the difference will accrue interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 8 June 2018. It is possible that the amount may be agreed, but if not the orders I propose will permit the parties to be heard on that issue.

3. [149]

   I propose the following orders:

4. [150]

   GRIFFITHS AJA: I agree with Leeming JA.

ADDENDUM

1. [151]

   On 11 September 2024, the parties confirmed that they were agreed that the amount of $451,000 in order 3 made on 9 February 2024 should be replaced by $341,673, and the Court thereafter made this order: “Vary order 3 made on 9 February 2024 by replacing $451,000 with “$341,673””.